State Law Changes

February 16, 2011 Update

No Updates as of February 16, 2011

Minimum Wage Law

The current living wage for both the City of Oakland and the Port of Oakland is $11.15 per hour with benefits, and $12.82 per hour without benefits. The current living wage for the City of San Jose is $12.94 per hour with benefits, and $14.19 per hour without benefits (CA ¶5-1000).

Unemployment Insurance Law

The 2011 disability elective coverage rate in California is 2.82% (CA ¶5-1700).

Workers’ Compensation Law

The California Division of Workers’ Compensation has posted a new time of hire pamphlet on its website. This optional pamphlet meets the statutory requirements to notify new employees about California workers’ comp rights and benefits either at the time of hire or by the end of the first pay period (http://www.dir.ca.gov/dwc/DWCPamphlets/TimeOfHirePamphlet.pdf) (DWCNewsline 04-11, January 25, 2011) (CA ¶5-4300).

Unemployment Insurance Law

The current maximum weekly benefit amount in Connecticut is $555 (CT ¶7-1700).

Preemployment Inquiries Law

Effective January 1, 2011, any candidate for a student teaching position in a public school district or charter school shall be required to have a criminal background check as a condition of employment. Provided further, a candidate attending a private Delaware higher education institution shall provide a copy of his/her state and federal criminal history record, certified by the State Bureau of Identification, to the designated person at the placing private Delaware higher education institution (CDR 14-700, Sec. 746, as amended December 1, 2010 (14 DE Reg. 557), at DE ¶8-9000).

Fair Employment Practices Law

Immediately after being sworn in as Florida’s 45th governor, Rick Scott signed Executive Order 11-04 prohibiting discrimination in government employment and state contracting. The order reaffirms Executive Order 99-281, providing equal opportunity and prohibiting discrimination in government employment and state contracting on the basis of race, gender, creed, color, or national origin. Also, the order encourages competition and ensures state contracting opportunities are provided without discrimination based on race, gender, creed, color, or national origin (Executive Order 11-04, signed January 4, 2011, effective immediately, at FL ¶10-2500).

Preemployment Inquiries Law

Governor Rick Scott signed an executive order directing all state agencies under the direction of the Governor to verify the employment eligibility of all current and prospective agency employees through the United States Department of Homeland Security’s E-Verify System. These agencies are to include, as a condition of all state contracts, an express requirement that contractors utilize the E-Verify system to confirm the employment eligibility of (a) all persons employed during the contract; and (b) all persons, including subcontractors, assigned to the contractor to perform work under the contract with the state agency. Also, agencies not under the direction of the Governor are encouraged to verify the employment eligibility of their current and prospective employees utilizing the E-Verify system (Executive Order 11-02, January 4, 2011, at FL ¶10-9000).

Civil Unions

A bill that would allow couples in Hawaii to enter into civil unions passed out of the Hawaii Senate Judiciary Committee on January 25, 2011. Senate Bill 232 would allow same- or different-sex couples to enter into civil unions and would endow couples in those unions with the rights, benefits and protections of marriage. This would entitle individuals in civil unions to receive insurance through their partner’s employer, in addition to a host of other rights and responsibilities provided under various Hawaiian laws. The bill appears to be on a fast-track to passage, as the House has taken up a similar bill. A previous attempt to craft a civil unions law failed when then-governor Linda Lingle vetoed the legislation.

Human Rights Commission supports bill adding sexual orientation and gender identity as protected classes

According to the January 27 Spokseman-Review, the Idaho Human Rights Commission is endorsing S.B. 1033 that would add sexual orientation and gender identity as protected classes on the state’s fair employment practices act. The Commission voted 7-2 in favor of the legislation and the Senate Minority Leader Edgar Malepeai, who introduced the bill, says he’s hopeful lawmakers will consider it.

At least 20 states have laws banning sexual orientation discrimination, but Idaho lawmakers have rejected the idea as recently as 2009. With the repeal of the Military’s Don’t Ask, Don’t Tell policy, the president of the Idaho Human Rights Commission, Estella Zamora, hope this legislation gets passed.

Unemployment Insurance Law

For 2011, rates for positive-balance Idaho employers will range from 0.96% to 3.2%, and rates for deficit-balance employers will range from 4.8% to 6.8%. The standard rate is 3.36%. The Work Force Development Tax is in effect this year and the rate varies with each employer class. There is no Special Administration Reserve Fund tax in 2011, however. The maximum weekly benefit amount in Idaho for 2011 is $336. The minimum remains $72 (ID ¶13-1700).

Access to Personnel Files Law

The Illinois Personnel Record Review Act has been amended to prohibit disclosure of performance evaluations under the Freedom of Information Act (H. 5154, L. 2009, effective December 1, 2010, at IL ¶14-8500).

Criminal Background Checks Law

The School Code has been amended with respect to criminal history records checks for substitute teachers and the fee associated with in the inquiry. Chapter 105, Section 5/10-21.9, as amended by H. 5863, L. 2009, effective January 1, 2011. Para 14-23,600.01.

Preemployment Inquiries Law

The School Code has been amended with respect to criminal history records checks for substitute teachers (H. 5863, L. 2009, enacted December 30, 2010, and effective January 1, 2011, at IL ¶14-9000).

Religious Freedom Protection and Civil Union Act

On January 31, 2011, Illinois Pat Quinn, signed the “Illinois Religious Freedom Protection and Civil Union Act.” Under S.B. 1716, that becomes effective June 1, 2001, Illinois becomes one of six states to legalize civil unions, including same-sex couples. According to Governor Quinn, “today is an important day in the history of our state because today we are showing the world that the people of Illinois believe in equality for all,” The new law permits both heterosexual and same-sex couples are allowed to enter into a civil union, affording the same state rights and protections already entitled to married couples. These rights include automatic hospital visitation rights and the ability to make emergency medical decisions for partners; ability to share a room in a nursing home; adoption and parental rights; pension benefits; inheritance rights; and the right to dispose of a partner’s remains. The law is yet to be codified and reads as enacted by S. 1716, L. 2010, Sections 1 through 60, effective June 1, 2011. Paras 14-20,037.01 through 13-20,037.11.

Unemployment Insurance Law

From January 1, 2011, through December 31, 2011, the maximum weekly benefit amount for an individual with no dependents is $388, the maximum for an individual with a nonworking spouse is $462, and the maximum for an individual with a dependent child or children is $531. The statewide average weekly wage on which the maximum benefit amount calculations are based is $824.36 for 2011. The minimum weekly benefit amount remains $51 (IL ¶14-1700).

Preemployment Inquiries Law

Newly installed Maine Governor Paul LePage has rescinded two of his predecessor’s executive orders that he said had created the impression that Maine was a “so-called sanctuary state” for undocumented immigrants. LePage also signaled the state’s intent “to promote rather than hinder the enforcement of federal immigration law.” State employees and officials are directed to cooperate with federal government officials on all matters pertinent to immigration, “subject only to any limitations imposed by statutory law or by the Constitutions of Maine or the United States” (Executive Order FY 08 11/12, signed January 6, 2011, effective immediately, at ME ¶20-9000).

Minimum Wage Law

Until June 30, 2011, the living wage rate for Montgomery County is $13.00 per hour (MD ¶21-1000).

Wage Payment Law

A disposal service company’s policy that allows an employee found to be at fault in an accident involving company trucks to agree to a wage deduction in lieu of discipline violates a key provision of the Massachusetts Wage Act, the state supreme court ruled in reversing a superior court judgment (Camara v Attorney Gen, January 25, 2011, McLaughlin, D). Although the superior court judge found that the written policy was consistent with Sec. 148 of the Wage Act, the high court concluded that the statute prohibits wage deductions associated with an employer's unilateral determination of an employee's fault and damages, and that the company’s policy, by withholding employees' wages, contravenes the Wage Act (MA ¶22-1200).

Child Labor Law

The Michigan Youth Employment Standards Act has been amended to provide an exception to the work permit requirement for a minor who performs unpaid volunteer work for a charitable organization, specifically an organization that is recognized as tax-exempt under, or whose purposes, structure, or activities are exclusively those that are described in, Sec. 501(c)(3) of the Internal Revenue Code (Act 221 (S. 860), L. 2000, enacted and effective December 9, 2010, at MI ¶23-1500).

Wage Payment Law

Michigan’s wage payment and fringe benefits law has been amended to revise requirements for employers for issuing payroll debit cards and direct deposit; to provide a right for an employee to request a change in the method of receiving wages at any time; and to provide the required characteristics for a payroll debit card (Act 323 (H. 5821), L. 2009, enacted and effective December 21, 2010, at MI ¶23-1200).

Immigration Legislation

The Mississippi Senate passed legislation on January 18 that is similar to Arizona’s immigration status law. Senate Bill 2179 would authorize law enforcement officers to check a person’s immigration status during any lawful stop, detention, or arrest where reasonable suspicion exists that the individual is an alien and not lawfully present in the United States. The legislation would also make it a crime to willfully fail to either complete, or carry, an alien registration document. The measure would also amend the “Mississippi Employment Protection Act,” which prohibits employers from hiring unauthorized aliens, by prohibiting employers from using third-party employers to hire an unauthorized alien. It would also require the Attorney General to perform certain duties relating to investigation and handling of complaints; to provide for expedited court action and would impose employer sanctions that include a three-year probationary period and license suspension for a first offense and license revocation for a second violation.

In addition, the bill would amend E-verify requirements to require employers to keep a record of the verification for the duration of the employee’s employment or at least three years, whichever is longer. The measure would also extend the authority to impose sanctions or seek penalties authorized under the law to the Department of Revenue, Board of Public Contractors, and any other state agency, department or government entity, in addition to the Department of Employment Security, Secretary of State, Department of Human Services, and the Attorney General. The bill would also make it a misdemeanor for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work or solicit work in a public place in the state. The bill now goes before the House, which failed to pass similar immigration measures last year.

Senator Dubas introduces bill regarding breast-feeding rights

Nebraska Senator Annette Dubas, according to the Journal Star, introduced L.B. 197 that would ensure mothers to breast-feed her child in any public or private location where the mother is otherwise authorized to be. Even though the law doesn’t specifically indicate places of employment, the legislation can be construed to include places of employment. Currently, there are 44 states, the District of Columbia and the Virgin Islands have laws protecting breast-feeding mothers in public or private locations.

Access to Personnel Files-State Employees Rules—Topic added

Any document which is used by the Department of Personnel or an agency in the process of interviewing an applicant, including, without limitation, a document containing interview questions, evaluation tools used for rating applicants and any notes concerning an applicant that were taken by a person as part of the process of rating an applicant are to be kept confidential. Access to an employee’s personnel is limited to the employee or the employee’s representative when a signed authorization from the employee is presented or is in his employment file. However, an employee’s file may be viewed by an agency representative if it involves an employment decision or to persons authorized pursuant to any state or federal law or an order of a court. Chapter 284, Sections 284.718, as amended effective June 30, 2010 and 284.726, as amended effective Oct. 15, 2010. Paras 29-23,750.01 and 29-23,750.02.

Domestic Partnership Act

Domestic partners have the same right to nondiscriminatory treatment as that provided to spouses, and public agencies may not discriminate against any person or couple on the basis or ground that the person is a domestic partner rather than a spouse or that the couple are domestic partners rather than spouses. The law was enacted by Ch. 393 (S. 283), L. 2009, effective Oct. 1, 2009 and was codified in the Nevada Revised Statutes at Title 11, Chapter 122A, Sections 122A.010 through 122A.210, later amended by Ch. 10 (S. 6), L. 2010, effective July 1, 2010. Paras 29-20,950.01 through 29-20,950.08.

Criminal Background Checks Law

The law has been amended with respect to criminal record checks in public school employment and volunteer service. Title 18A, Subtitle 3, Chapter 6, Section 18A:6-7.1, as amended by Ch. 122 (A. 3466), L. 2010, enacted January 5, 2011, effective in the first school year following enactment. Para 31-23,600.06.

Preemployment Inquiries Law

The law has been amended with respect to criminal record checks in public school employment and volunteer service (Ch. 122 (A. 3466), L. 2010, enacted January 5, 2011, at NJ ¶31-9000).

Unemployment Insurance Law

Effective January 1, 2011, all workers pay a rate of 0.06% to cover Family Leave Insurance (NJ ¶31-1700).

Minimum Wage Law

As previously reported, a new “Hospitality Wage Order” took effect January 1, 2011, in New York. The new order covers employees in both the hotel and restaurant industries. In addition, effective January 1, 2011, the former Parts 137 and 138, which covered those industries, have been repealed (http://www.labor.ny.gov/sites/legal/laws/pdf_word_docs/hospitality-wage-order/hospitality-wage-order.pdf) (NY ¶33-1000).

Overtime Pay Law

Emergency rulemaking clarifying emergency circumstances when an employer may require mandatory overtime for nurses has been extended to February 27, 2011 (12 NYCRR 177, adopted effective January 4, 2011; Filing No. 1362, December 30, 2010; posted January 19, 2011, NY State Register, Vol. XXXIII, Issue 3. ID No. LAB-43-10-00003-E (expected to be made permanent) (NY ¶33-1100).

Breastfeeding Rights in State Employment Rule —Topic added

Rules were adopted to implement the State’s policy to assist working mothers who are nursing children during their transition back to work following the birth of a child by providing lactation support. A lactation support program will be created allowing a nursing mother to express breast milk periodically during the work day. In addition, state agencies are to provide space, privacy, and time for nursing mothers to express breast milk. These private spaces shall not be a bathroom and regular scheduled paid break times are to be created to express breast milk. If more time is needed beyond the regularly scheduled paid break times, the agency shall make reasonable efforts to allow employees to use paid leave or unpaid time for this purpose. Title 25, Subchapter 1N, Section 0600, Sections .0601 through .0605, as adopted effective Jan. 1, 2011. Paras 34- 22,700.01 through 34-22,700.05.

Anti-Discrimination Policy in State Government Employment (E.O. 2011-05K)

Newly elected Governor John Kasich signed Executive Order 2011-05K January 21 establishing an anti-discrimination policy promoting equal employment opportunities in state employment. The order protects state employees or candidates for state employment from discrimination based on race, color, religion, gender, national origin, military status, disability, age, genetic information, or sexual orientation. As reported in the Columbus Dispatch the following day, the order continues former Governor Strickland’s order (2007-10S) on the same subject. However, Kasich’s order does not include “gender identity;” a term generally not included in any definition of “sexual orientation.” Paras 36-20,027 and 36-20,450.

Discrimination Against Crime Victims in State Government Employment (E.O. 2011-04K)—Topic added

Newly elected Governor John Kasich signed Executive Order 2011-04K January 21, 2011, effective immediately, establishing workplace domestic violence policy. State agencies are required under to the order not to discriminate, penalize, or discipline a state employee, solely for the acts resulting from being a victim or survivor of domestic violence. Victims of domestic violence are to be given due consideration and accommodation by State employers in the form of modified work assignments, if necessary and granting leave requests if an employee needs to be absent from work due to current or past domestic violence. Executive Order 2011-04K continues the “Barbara Warner Workplace Domestic Violence Policy” established in 2008. The Order also calls for referring perpetrators of domestic violence who are state employees to the Ohio Assistance Program for services and/or short-term counseling. Executive Order 2011-04K, as signed January 21, 2011, effective immediately. Para 36-21,050.

Fair Employment Practices Law/Sexual Orientation Discrimination Law

Newly elected Governor John Kasich signed Executive Order 2011-05K on January 21, 2011, establishing an anti-discrimination policy promoting equal employment opportunities in state employment. The order protects state employees or candidates for state employment from discrimination based on race, color, religion, gender, national origin, military status, disability, age, genetic information, or sexual orientation. As reported in the Columbus Dispatch the following day, the order continues former Governor Strickland’s order on the same subject. However, Kasich’s order does not include “gender identity,” a term generally not included in any definition of “sexual orientation” (OH ¶36-2500 and OH ¶36-3100).

Also, the new governor signed Executive Order 2011-04K on January 21, 2011, effective immediately, establishing workplace domestic violence policy. State agencies are required not to discriminate, penalize, or discipline a state employee solely for the acts resulting from being a victim or survivor of domestic violence. Victims of domestic violence are to be given due consideration and accommodation by state employers in the form of modified work assignments, if necessary and granting leave requests if an employee needs to be absent from work due to current or past domestic violence. Executive Order 2011-04K continues the “Barbara Warner Workplace Domestic Violence Policy” established in 2008. The order also calls for referring perpetrators of domestic violence who are state employees to the Ohio Assistance Program for services and/or short-term counseling (OH ¶36-2500).

Workers’ Compensation Law

A jury award of $175,000 in punitive damages to a lumber mill employee who was injured on the job and then denied reinstatement after he was cleared to work was not “grossly excessive” under the due process clause of the U.S. Constitution (Hamlin v Hampton Lumber Mills, January 6, 2011, Walters, M). A divided Oregon Supreme Court reversed a state appeals court decision finding the punitive damages award violated the employer’s due process rights and reducing the award to a sum of four times the amount of compensatory damages. Dissenting, Judge Gillette issued a plea to the U.S. Supreme Court for further guidance on applying its guidepost on the proper ratio of compensatory to punitive damages (OR ¶38-4300).

Recordkeeping/Posters Law

Rhode Island's newly sworn-in Governor Lincoln D. Chafee on January 5 fulfilled a campaign promise by repealing previous Governor Donald L. Carcieri's 2008 Executive Order on E-Verify. Governor Chafee issued Executive Order 11-02 to rescind the 2008 Order effective immediately. Governor Chafee also directed the Rhode Island State Police (RISP) to withdraw from its memorandum of agreement (MOA) with Immigration and Customs Enforcement (ICE), the federal immigration enforcement body. RISP Superintendent Col. Brendan P. Doherty has agreed to support and uphold the Governor's directive (Rhode Island Government Press Release, January 5, 2011), http://www.ri.gov/press/view/12942).

According to Governor Chafee, the repeal of Executive Order 08-01 on E-Verify effectively turns back the clock to the day before it was signed into law (March 27, 2008), adding that “This re-set will allow us to engage in a comprehensive dialogue with our immigrant communities, law enforcement agencies, and all interested parties. This is an opportunity to reach a consensus on how best to enforce the law” (RI ¶41-9900).

Unemployment Insurance Law

The Department of Employment and Workforce Law has been extensively revised (SC ¶42-1700).

Workers’ Compensation Law

Addressing the “horseplay doctrine” head on for the first time, the Virginia Supreme Court held a Ruby Tuesday waiter who was injured when his coworkers playfully threw ice at him was entitled to workers’ compensation benefits for the resulting injury (Simms v Ruby Tuesday, January 13, 2011, Goodwyn, S.B.). The appeals court below, in ruling to the contrary, had misinterpreted the high court’s analysis in a 2008 case and had erroneously concluded that the horseplay doctrine was no longer viable (VA ¶48-4300).

Unemployment Insurance Law

For 2011, contribution rates (including the graduated social cost rate) range from 1.33% to 6.00%. There is also an Employment Administration Fund tax in effect for 2011, which brings the total rate range to 1.36% to 6.02% (WA ¶49-1700).

Civil Unions and Gay Marriage

The Wyoming State Senate has approved a resolution calling for an amendment to that state’s constitution that would prohibit gay marriage and civil unions. Joint Resolution 5, which passed 21-7, would place an amendment on the ballot in the 2012 general election that would allow the voters to decide whether to prohibit individuals from entering into gay marriages or civil unions. The resolution, which bluntly states that “A marriage between a man and a woman shall be the only legal union that shall be valid or recognized in this state,” is bucking the recent trend in favor of allowing at least civil unions. The federal government has decided to rescind the controversial “Don’t Ask, Don’t Tell” policy that forbade homosexuals from serving in the military, while several states, including Illinois, have recently passed legislation allowing either civil unions or gay marriages.