State Law Changes

January 19, 2011 Update

No Updates as of January 19, 2011

Workers’ Compensation Law

The broken arm that a certified nurses assistant (CNA) suffered while on a smoke break after attending mandatory paid in-service training and before she received her paycheck was a compensable injury, the Arkansas Supreme Court ruled (Jonesboro Care and Rehab Ctr v Woods, December 10, 2010, Gunter, J). Her employer contended that at the time of her injury, she was merely taking a personal break, had finished her work responsibilities, and was waiting only to pick up her paycheck, which advanced solely her own personal interests. An employee is performing employment services when he or she is doing something that is generally required by his or her employer; this is essentially the same test as the “course and scope of employment” test. Here, the state supreme court found substantial evidence that the employee attended the mandatory paid seminar on her day off, she was required to remain on the clock while waiting for her paycheck, she stepped outside to smoke, and that she fell as she was returning to the seminar room. There was evidence to support the Commission's decision that her employer benefitted, at least indirectly, from her attending the seminar so that it could distribute information, conduct training, and dispense payroll checks. Accordingly, the court affirmed the Commission's decision that the injury was compensable (AR ¶4-4300).

Overtime Pay Law

The overtime exemption rates for computer software employees and licensed physicians and surgeons will remain unchanged for year 2011 (State of California Department of Industrial Relations, Memoranda from Gregory Govan, DLSR Chief, to John C. Duncan, DIR Director, October 12, 2010).

Sections 515.5 and 515.6 of California's Labor Code provide that certain employees in these fields are exempt from overtime requirements stipulated in Labor Code Section 510 if certain criteria are met. One of the criteria is that the employee's hourly rate of pay is not less than the statutorily specified rate, which the Division of Labor Statistics and Research is responsible for adjusting every October 1 of each year to be effective on January 1 of the following year by an amount equal to the percentage increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers. Assembly Bill 10, L. 2008, amended California Labor Code Section 515.5 effective September 30, 2008, to extend the exemptions to salaried computer software employees whose annual and monthly salaries are not less than the statutorily specified rates, also to be adjusted annually each October 1 to be effective January 1 of the following year.

Even though there was a CCPI increase of 1.1% between August of 2009, and August of 2010, the DLSR staff did not recommend increases because the DLSR did not reduce the specified rate of pay last year (2008 to 2009) when the CCPI dropped by 1.4%. If the DLSR had reduced it last year, then there would have been a basis for recognizing the CCPI increase this year. Instead, the DLSR used data based on changes in the California Consumer Price Index for the period August 2008 (220.946 Index Value) to August 2010 (220.109 Index Value), which reflects a negative 0.4% change. Since there has been no increase in this index for the measurement period specified, the rates will remain unchanged for the period beginning January 1, 2011.

The current computer software employee's minimum hourly rate of pay exemption of $37.94, the minimum monthly salary exemption of $6,587.50, and the minimum annual salary exemption of $79,050.00 will continue to apply effective January 1, 2011. Likewise, the overtime exemption rate for licensed physicians and surgeons will remain at $69.13 effective January 1, 2011 (CA ¶5-1100).

Family Leave Rules

The rules were amended to provide guidelines for implementing the District of Columbia Family and Medical Leave Act of 1990. Also, minor alterations were also made to clarify the intent, meaning, or application of the proposed rules. Title 4, Chapter 16, Sections 1600 through 1699, as repealed and readopted effective Nov. 19, 2010. Paras 9-22,500.01 through 9-22,500.99.

Nondiscrimination in Government Employment and State Contracting

Immediately after being sworn-in as Florida’s 45th governor, Gov. 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 to prohibit 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 4th, 2011, effective immediately. Paras 10-23,300.

Employment of Aliens Executive Order

Newly sworn-in Governor Rick Scott immediately 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, as signed January 4th, 2011, effective immediately. Para 10-24,051.

Unemployment Insurance Law

The taxable wage base in Hawaii for 2011 will be $34,200. This amount is a decrease of $700 from the 2010 taxable wage base amount of $34,900 (HI ¶12-1700).

Employment of Aliens (E.O. 08 FY 11/12)

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;” in rescinding Executive Order 13 FY 04/05 (a 2004 directive) and Executive Order 34 FY 04/05 (issued in 2005), effective immediately, directing state employees and officials 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. Para 20-24,051.

Recordkeeping/Posters Law

The state’s minimum wage poster has been updated (MT ¶27-9900).

Wage Payment Law

The New Jersey Department of Labor and Workforce Development, Wage and Hour Compliance Division, has revised its Wage and Hour rules by adopting a new rule on the use of “time clocks” and “rounding” practices. The new rule mirrors federal requirements. The rule states that time clocks are not required. When used, employees who come in before the regular start time or remain after closing are not required to be paid for such periods of time, provided the employee does not engage in any work. Early or late clock punching may be disregarded. For “rounding” practices, the rule states that it has been found that in some industries, particularly where time clocks are used, that there has been a practice of recording the employee's start time and stopping time to the nearest five minutes or to the nearest 1/10 or quarter of an hour. For enforcement purposes, this practice of computing time will be accepted, provided that it is used in such a manner as not to result, over a period of time, in failure to compensate the employees properly for all time actually worked (N.J.A.C. 12:56-5.8, added effective December 20, 2010, and scheduled to expire January 26, 2011, unless readopted (42 N.J.R. 3061(b)) (NJ ¶31-1200).

Unemployment Insurance Law

For 2011, the rates in Schedule 1 are in effect. Schedule 1 contribution rates range from 0.05% to 5.4%. The rate for new employers is 2.0% (NM ¶32-1700).

Health Insurance Benefit Coverage Law

The state’s Public Health Law and Insurance Law have been amended with respect to cost-sharing, deductible and co-insurance for tier IV prescription drugs. The changes are intended to provide patients more affordable access to prescription drugs essential for their treatment of cancer, multiple sclerosis, rheumatoid arthritis, hepatitis C, hemophilia, psoriasis, and other diseases (Ch. 536 (S. 5000), L. 2010, at NY ¶33-4000).

Minimum Wage Law

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).

The new Part 146 is added to Title 12 of the New York Code of Rules and Regulations at Title 12. The order simplifies and increases the minimum wage requirements for tipped employees; requires extra payments under specified circumstances, such as call-in pay, spread of hours pay, and uniform maintenance pay; exempts wash-and-wear uniforms from uniform maintenance pay; requires hourly rates of pay for all hospitality employees, except executives, administrators, professionals and commissioned salespersons; and requires that whenever a work shift is long enough to invoke the meal period law, employers will have to either allow employees to bring their own food or give them a meal at a cost no greater than the meal credit amount in the wage order.

This regulation permits employers the same powers with respect to tip pooling as they have always had with respect to tip sharing (i.e., to require pooling and/or sharing and to set the percentages that each occupational group receives from the pool or from the sharing).

This regulation also requires employers to provide notification to banquet, special event, and package deal customers in writing as to whether an administrative fee does or does not include a gratuity. Employers bear the burden of proving that the notification was sufficient to ensure that a reasonable customer would understand that such charge was not purported to be a gratuity. The required content and form of such notification is set forth in the regs. There is now a rebuttable presumption that any charge in addition to charges for food, beverage, lodging, and other specified materials or services, including but not limited to any charge for “service” or “food service,” is a charge purported to be a gratuity.

Recordkeeping/Posters Law

The new Hospitality Industry Minimum Wage Information poster has been added (NY ¶33-9900).

Wage Payment Law

New York Governor David A. Paterson has signed into law S. 8380/A.11726, the Wage Theft Prevention Act, which addresses the failure by employers to pay statutorily-mandated minimum wages and overtime by requiring annual notifications of wages, expanding notifications, enhancing available remedies for wage law violations and strengthening whistleblower protections (New York State Governor David A. Paterson Press Release, December 13, 2010; http://www.ny.gov/governor/press/121310WageTheftPreventionAct.html) (NY ¶33-1200).

Recordkeeping/Posters Law

The state’s minimum wage poster has been updated (OH ¶36-9900).

Recordkeeping/Posters Law

The state’s minimum wage posters (English and Spanish versions) have been updated (OR ¶38-9900).

Employment of Aliens (E.O. 11-02)

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. The Governor issued Executive Order 11-02 to rescind the 2008 Order effective immediately. Also, the order directs 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).

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.” Para 41-24,050.

Unemployment Insurance Law

The taxable wage base in Rhode Island for unemployment insurance purposes will remain $19,000 in 2011. The temporary disability insurance taxable wage base for 2011 will rise to $58,400, up $500 from the 2010 amount of $57,900 (RI ¶41-1700).

Workers’ Compensation Law

Although traveling home from work is not normally considered to be within the workers’ compensation “course and scope” of employment, a pharmaceutical sales rep who drove from business appointments to a business dinner, and then headed towards a company-provided storage unit to empty her car of samples on the way to her home office was found by the Texas Supreme Court to be acting within the course and scope of her employment (Leordeanu v American Protection Ins Co, December 3, 2010, Hecht, N) (TX ¶45-4300).

Recordkeeping/Posters Law

The Washington State Department of Labor and Industries has announced that it will no longer publish a separate poster listing the new minimum wage each time the wage changes, stating that the new policy will simplify requirements for businesses and save taxpayers money. Employers will still be required to post the “Your Rights as a Worker” poster, which provides information about the minimum wage and other topics. This poster is available at no cost from the Department (Source: Washington State Department of Labor and Industries, http://www.WorkplaceRights.Lni.wa.gov, “Minimum Wage”).

The Department has issued an announcement on its Internet website of the 2011 minimum wage change that employers may print out. This announcement is not required or recommended by state law, but is merely provided for convenience. Effective January 1, 2011, the minimum wage in Washington is $8.67 per hour (http://www.lni.wa.gov/WorkplaceRights/files/2011MinimumWageAnnouncement.pdf) (WA ¶49-9900).