State Law Changes

March 17, 2010 Update

No Updates as of March 17, 2010

State Employment Disability Discrimination Policy (Rule)—Topic added.

The Arkansas Department of Human Services, its divisions, offices and programs has 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, Sections 1078.1.0 through 1078.8.0 and Attachment A, as amended effective Feb. 16, 2010. Paras 4-20,800.01 through 4-20,800.08 and 4-23,500.21 and 4-23,500.22.

Family, Medical, and Parental Leaves Law

In a highly anticipated decision, the California Supreme Court has ruled that the state’s “kin care” law, Labor Code Sec. 233, does not apply to paid sick leave policies that provide for an uncapped number of compensated days off. The law allows employees to use one-half of their accrued annual paid sick leave to care for the illness of a close family member or domestic partner. At issue was a sick leave policy contained in a collective bargaining agreement that permitted employees to take successive five-day periods off for their own illness, if they worked in between. The state high court said the kin care could not sensibly be applied to the sick leave plan because it is impossible to determine the amount of compensated time off for illness an employee may be entitled to when the leave is not banked and cannot be calculated with certainty in six-month periods. This reasoning also was supported by Sec. 234, which prohibits employers from disciplining employees for taking kin care, and by the legislative history, which shows that the law was not intended to broadly apply to all types of sick leave policies. Employers may refuse to allow employees to use uncapped sick leave to care for relatives, although they are not required to do so. They may, like these employers, offer compensated personal days off which may be used to care for relatives, the state high court said (McCarther v Pacific Telesis, February 8, 2010, at CA ¶5-7000).

Health Insurance Benefit Coverage Law

The state's law relating to requirements for prostate cancer screening coverage has been amended (Ch. 234 (A. 299), L. 2009, effective January 1, 2010, at CA ¶5-4000).

Plant Closing Law

The California Department of Industrial Relations has issued an opinion letter advising an employer that it was not excused from providing employees the requisite 60 days’ notice before closing a facility, as required under the California WARN Act, because it was not actively seeking capital or business at the time such notice was to be issued. The employer did not present any facts indicating it was actively seeking capital or business within the meaning of Section 1402.5 of CalWARN at the time notice should have been given. The employer indicated that the only option it was considering was a sale of the business, not the investment of additional capital, so the employer failed to meet this condition of the exception. Moreover, the employer must have a reasonable, good-faith belief that giving required notice would have precluded the employer from obtaining the needed capital or business. The facts presented here were not sufficient to establish such a belief (In Re Sandu, January 4, 2010, at CA ¶5-3500).

Unemployment Insurance Law

The maximum weekly benefit amount in 2010 for California state disability insurance purposes is $987 (CA ¶5-1700).

Discrimination Based on Arrest Record Law—Topic added.

The fact that a person has been convicted of a felony or other offense involving moral turpitude shall not, in and of itself, prevent the person from applying for and obtaining public employment. However, employees or applicants convicted of offenses involving moral turpitude are to be terminated and restricted in positions involving vulnerable persons in public employment. Title 24, Article 5, Section 24-5-101 and Title 27, Article 1, Section 27-1-110. Paras 6-23,500.01 and 6-23,500.21.

Wage Payment Law

Effective January 1, 2011, deductions allowed to be made from employee wages or compensation will include deductions for contributions attributable to automatic enrollment in an employee retirement plan, regardless of whether the plan is subject to ERISA.

Employers will not be liable for the investment decisions made by the employer on behalf of any participating employee with respect to the default investment of contributions made for that employee to the plan if: (1) the employee is provided with at least quarterly opportunities to select investments for the contributions among investment alternatives available under the plan; (2) the employee is given notice of the investment decisions that will be made in the absence of direction from the employee, as well as a description of all investment alternatives available and a brief description of available procedures for the employee to change investments; (3) the employee is given at least annual notice of the actual default investments made of contributions attributable to the employee. The relief of employer liability extends to any employee retirement plan official who makes the actual default investment decisions on behalf of participating employees. Existing responsibilities of employers and plan officials for selection of investment funds for participating employees would not be modified by this provision (S. 35, L. 2010, effective January 1, 2011, subject to petition. Section 3 of S. 35, L. 2010, provides that if a referendum petition is filed against any part of S. 35, L. 2010, within the 90-day period after final adjournment of the general assembly, then the act or affected parts will not take effect unless approved by the people at the November 2010 general election, and will then take effect on January 1, 2011, or on the date of the official declaration of the vote by the governor, whichever is later) (CO ¶6-1200).

COBRA Law

The state's COBRA law has been amended with respect to premium assistance (P.A. 10-1 (H. 5015), L. 2010, at CT ¶7-4200).

Unemployment Insurance Law

The current maximum weekly benefit amount for new claims is $330. The minimum amount is $20 (DE ¶8-1700).

Unemployment Insurance Law

From January 3, 2010, through January 1, 2011, the maximum weekly benefit amount for an individual with no dependents is $385, the maximum for an individual with a nonworking spouse is $458, 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 $817.32 for 2010 (IL ¶14-1700).

Workers' Compensation Law

In a case of first impression, the Illinois supreme court ruled that an employer remained obligated to pay temporary total disability (TTD) workers’ comp benefits to an employee who was injured in the course of employment, even after the employee was discharged for conduct unrelated to his injury. After the employee was injured on the job, he received TTD benefits for the time when he couldn’t work and maintenance benefits for the period in which he performed light-duty work. The employee was terminated following a confrontation with a company official over his failure to report an overpayment on a paycheck. The state high court concluded that, despite his discharge, the employer’s obligation to pay TTD benefits continued until the employee’s medical condition stabilized and he reached maximum medical improvement. Nothing in the Workers’ Compensation Act supported a finding that TTD benefits may be denied to an employee who remains injured, yet has been discharged for conduct unrelated to his injury, the supreme court reasoned. An employer’s obligation to pay TTD benefits to an injured employee does not cease because the employee is discharged, regardless of whether the discharge was for cause (Interstate Scaffolding Inc v Illinois Workers’ Compensation Comm, January 22, 2010, at IL ¶14-4300).

Preemployment Inquiries Law

The state has amended its law relating to criminal history and abuse registry checks for employees of health care facilities (S. 2149, L. 2009, enacted February 23, 2010, at IA ¶16-9000).

Unemployment Insurance Law

The maximum weekly benefit amount in Louisiana for 2010 is $247. The minimum remains $10 (LA ¶19-1700).

Rules of Practice and Procedure

Changes were made to the Commission’s procedural rules to implement new statutory provisions as well as comply with the Commission’s work-sharing agreements with its federal partners; combine the housing procedural rule with the general procedural rule; add a provision on advisory rulings; and clarify the roles of Commission staff. 94-348, Chapter 2, Sections 2.01 through 2.12, as amended by Rule 2010-19, effective Feb. 8, 2010. Paras 20-20,125.01 through 20-20,125.12.

Fair Employment Practices Act

Maryland Attorney General Douglas F. Gansler released a long-awaited opinion Wednesday, February 23, 2010, saying that Maryland should recognize same-sex marriages performed in other states. With the ruling, state agencies will be required to extend all benefits that heterosexual couples enjoy to married gay couples. These could include health insurance expansion, spousal legal immunities, property rights, the ability to file wrongful-death suits and perhaps some tax benefits. The ruling does not enable same-sex couples to wed in Maryland and does not carry the weight of law, but is meant to guide judges and state agencies. Full text of the opinion is at http://www.oag.state.md.us/Opinions/2010/95oag3.pdf.

Marital Status Discrimination Law

Maryland Attorney General Douglas F. Gansler has issued an opinion that a same-sex marriage that is valid in another jurisdiction should be recognized as valid in Maryland (95 OAG 3, February 23, 2010, at MD ¶21-3200).

Recordkeeping/Posters Law

The Spanish version of the state's living wage poster has been added (MD ¶21-9900).

Family, Medical and Parental Leaves Law

Massachusetts Governor Deval L. Patrick has established by executive order a catastrophic leave donation program to support Commonwealth employees impacted by the tragedy in Haiti (Executive Order No. 520, January 28, 2010, at MA ¶22-7000).

Violence in the Workplace Law

The state has enacted a new harassment prevention order law. The law provides that a person suffering from harassment may specifically request that the court order a defendant to remain away from the plaintiff's workplace (Ch. 23 (S. 2212), L. 2010, at MA ¶22-3300).

Unemployment Insurance Law

The maximum weekly benefit amount in Nebraska for 2010 is $318. An unemployed individual is not eligible for benefits unless he or she is paid wages for covered employment of not less than $2,761 in 2010 (NE ¶28-1700).

Smoking in the Workplace Law

Effective July 10, 2010, the law that prohibits smoking in enclosed indoor places of public access and workplaces (“New Jersey Smoke-Free Air Act”) is amended to also prohibit the use of electronic smoking devices in such places. An “electronic smoking device” is defined as an electronic device that can be used to deliver nicotine or other substances to the person inhaling from the device, including, but not limited to, an electronic cigarette, cigar, cigarillo, or pipe (Ch. 182 (A. 4227), L. 2009, at NJ ¶31-2700).

Evidence of workplace sabotage sufficient to satisfy tan adverse employment action under Burlington Northern

The evidence of workplace sabotage and punitive scheduling offered by employees, who participated in an investigation and hearing concerning their director’s racial discrimination against a coworker, were sufficient to satisfy the employees’ burden of showing an adverse employment action under Burlington Northern; a reasonable employee might be dissuaded from participating in an investigation or proceeding if he knew that in retaliation, he would be disciplined for failing to arm a security system or that his work schedule would be changed so that he would have to work alone in a more dangerous facility Hicks v Baines (2dCir) 93 EPD ¶43,804.

Smoking in the Workplace Law

The definition of “restaurant” has been amended to mean a food or lodging establishment that prepares and serves drink or food as regulated by the Commission for Public Health (Ch. 550 (H. 274), L. 2009, at NC ¶34-2700).

In addition, the Department of Health and Human Services has adopted rules to implement the law prohibiting smoking in enclosed areas of bars and restaurants. These rules require that cigar bars, in order to qualify as exempt, must file a quarterly affidavit stating the establishment meets applicable statutory requirements. The rules also specify sign posting requirements for bars and restaurants, to require that signs be posted at each public entrance at a height and location easily seen; be at least 24 square inches in size; be in legible font type; and display the Division of Public Health’s toll-free complaint line telephone number, “G.S. 130A-497”, and http://www.smokefree.nc.gov (10A NCAC 39C.0101 through 39C.0103, adopted effective January 2, 2010, at NC ¶34-2700).

Preemployment Inquiries Law

While the courts continue to struggle with the interplay between federal and state immigration laws, the Tenth Circuit Court of Appeals affirmed a trial court’s preliminary injunction grant barring enforcement of certain employment verification provisions in Oklahoma’s comprehensive Taxpayer and Citizen Protection Act of 2007 (H. 1804). The circuit court held the invalidated provisions, which: (1) sought to create a new cause of action against Oklahoma employers that discharge U.S. citizens or legal permanent resident employees while retaining undocumented workers; and (2) required all Oklahoma businesses to obtain documents to verify the work eligibility of their independent contractors or withhold certain taxes from them, were either expressly or impliedly preempted by federal immigration law. However, the Tenth Circuit split on the legality of the Act’s mandate that all public contractors (and subcontractors) enroll in the federal government’s E-Verify program. As a result, the circuit court reversed the district court’s grant of a preliminary injunction against the enforcement of the E-Verify mandate (Chamber of Commerce of the USA v Edmondson, 10thCir, Nos 08-6127 & 08-6128. February 2, 2010, at OK ¶37-9000).

The case will likely be returned to district court in order to determine whether a permanent injunction should be issued. Media reports indicate that the state has not determined whether it will ask the Tenth Circuit to rehear its appeal or appeal the case to the U.S. Supreme Court.

Bureau of Labor Rules of Administrative Procedure

The Commissioner of the Bureau of Labor and Industries adopted final rules implementing complaint procedures for civil rights violations to include newly enacted requirements that a verified written complaint is valid only if signed by the aggrieved party. Chapter 839, Division 3, Sections 839-003-0005, 839-003-0025, and 839-003-0040, as amended effective Feb. 24, 2010. Paras 38-20,126.05, 38-20,126.25, and 38-20,126.40.

Bureau of Labor Rules of Administrative Procedure

The Commissioner of the Bureau of Labor and Industries adopted final a rule implementing an employee’s right to use vacation leave, or other leave available to the employee, for the purpose of allowing an employee to engage in the religious observance or practices of the employee. An employer is required to accommodate such leave only when reasonably accommodating use of the leave by the employee will not impose an undue hardship on the operation of the business of the employer. Chapter 839, Division 5, Section 839-005-0140, as adopted effective Feb. 24, 2010. Para 38-20,127.140.

Bureau of Labor Rules of Administrative Procedure

Rules were adopted by the Bureau of Labor and Industries implementing and interpreting discrimination protections for victims of domestic violence. Employers are prohibited from refusing to hire or otherwise discriminating against a qualified individual on the basis the individual is a victim of domestic violence, sexual assault or stalking. Chapter 830, Division 5, Sections 839-005-0160 and 839-005-0170, as adopted effective Feb. 24, 2010. Paras 38-20,127.160 and 38-20,127.170.

Fair Employment Practices Act

Oregon’s Fair Employment Practices Act was amended to clarify what constitutes a “disability,” and appropriate changes within the disability provisions. Title 51, Chapter 659A, Sections 659A.100, 659A.103, 659A.109, 659A.112, 659A.115, 659A.118, 659A.124, 659A.130, 659A.133, 659A.136, 659A.139, 659A.142 and a Section to be designated as part of the chapter, as amended and enacted by Ch. 508 (S.B. 874), L. 2009, effective Jan. 1, 2010. Paras. 38-20,025.100, 38-20,025.103, 38-20,025.109, 38-20,025.112, 38-20,025.115, 38-20,025.124, 38-20,025.130, 38-20,025.133, 38-20,025.136, 38-20,025.139, 38-20,025.142, and 38-20,026.04.

Bureau of Labor Rules of Administrative Procedure

The Commissioner of the Bureau of Labor and Industries issued temporary rules regarding subpoenas issued by the Civil Rights and Wage and Hour Divisions. Corporations are to be issued a subpoena duces tecum by the bureau in accordance with requirements for service of summons on a corporation pursuant to ORCP 7 D(3)(b). Also, the term “person” was conformed to the statutory definition. Chapter 839, Division 2, Sections 839-002-0030, 839-000-0040, 839-002-0045 and 839-002-0050, as amended as temporary effective Feb. 12, 2010 set to expire Aug. 6, 2010. Paras 38-20,125.30, 38-20,125.40, 38-20,025.45 and 38-20,125.50.

House passes Job Applicant Fairness Act, which restricts job-related credit checks

The Oregon House passed the Job Applicant Fairness Act that would expand the Fair Employment Act’s (Ch. 659A) employment discrimination protections on the basis of an applicant’s credit history. Under SB 1045, employers will be prohibited to obtain or use information contained in the credit history of an applicant for employment or an employee to refuse to hire, discharge, demote, suspend, retaliate or otherwise discriminate against an applicant or an employee based on credit history information. Exempt employers are: (1) federally insured banks or credit unions; (2) required by state or federal law to use individual credit history for employment purposes; (3) public safety officers commissioned by the state; and (4)using the information in the credit history of an applicant or employee because it is substantially job-related. The bill now moves to the Governor’s desk for his signature. Full text of the bill is located at http://www.leg.state.or.us/10ss1/measures/sb1000.dir/sb1045.en.html.

Fair Employment Practices Law

Governor Robert F. McDonnell has signed an “equal opportunity” executive order (Number 6) prohibiting discrimination in the state workforce on the basis of race, sex, color, national origin, religion, age, political affiliation, or against otherwise qualified persons with disabilities. The order took effect February 5, 2010 (VA ¶48-2500).

Sexual Orientation Discrimination Law

Governor Robert F. McDonnell has signed an “equal opportunity” executive order (Number 6) prohibiting discrimination in the state workforce on the basis of race, sex, color, national origin, religion, age, political affiliation, or against otherwise qualified persons with disabilities. Sexual orientation, which had been a protected class under prior executive orders, was not included in E.O. Number 6, effective February 5, 2010 (VA ¶48-3100).

Minimum Wage Law

The Department of Labor and Industries has updated rules relating to standards of labor to clarify exceptions to minimum wage rates. The director of the department of labor and industries may issue a special certificate authorizing the employer to pay less than the applicable minimum wage rate to (a) an employee who is physically or mentally handicapped to such a degree that he or she is unable to obtain employment in a competitive labor market, at a rate designed to adequately reflect the employee’s earning capacity; (b) a trainee or learner not subject to the jurisdiction of the Washington state apprenticeship and training council, at 85 percent of the applicable minimum wage rate; and (c) student-learners, at 75 percent of the applicable minimum wage rate (WAC 296-126-010 (amended) and 296-126-015 (adopted) effective March 15, 2010, at WA ¶49-1000).

Preemployment Inquiries Law

The Department of Labor and Industries has amended a rule relating to service letters. Every employer must furnish to a former employee, within 10 business days of receipt of the former employee's written request, a signed written statement that gives the reasons for the former employee's discharge and the effective date of the discharge (WAC 296-126-050, amended effective March 15, 2010, at WA ¶49-9000).

Recordkeeping/Posters Law

The Department of Labor and Industries has amended standards of labor rules covering employer posting requirements to specify that employers must keep posted in the workplace these rules in a form provided by the department, titled “Your Rights as a Worker in Washington State.” Such rules must be positioned in a readily accessible location and within plain view in each worksite where an employee or employees work (WAC 296-126-050 and 296-126-080, amended effective March 15, 2010, at WA ¶49-9900).

Wage Payment Law

The Department of Labor and Industries has updated standards of labor rules with regard to wage statements and handling of overpayments. Employers are required to furnish employees with itemized wage statements at the time of payment of wages. This rule requirement has been amended to define itemized pay statement as meaning a separate written statement from the paycheck issued to employees at each payday; to require that pay periods be identified on the pay statement by month, day, year and payment date; and to allow employers to make such pay statements available electronically, provided that the employee has access to receive and copy such electronic statement on payday. A rule relating to handling of overpayments has been amended to require that employees identify and record all wage adjustments openly and clearly in employee payroll records (WAC 296-126-030 and 296-126-040, at WA ¶49-1200).

Family, Medical, and Parental Leaves Law

On February 18, 2010, the Wisconsin Court of Appeals asked the Wisconsin Supreme Court to take up the constitutionality of Milwaukee’s paid sick leave mandate.

In June 2009, Milwaukee County Circuit Court Judge Thomas Cooper ruled that the city’s paid sick leave ordinance, which provided 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” (http://hr.cch.com/cases/milwaukee.pdf, Metropolitan Milwaukee Assoc of Comm v City of Milwaukee, Milwaukee County Circuit Court, No 08cv018220, June 12, 2009). 9to5, the National Association of Working Women, appealed Cooper’s ruling. The supreme court has been asked to decide whether the ballot question put before the voters of the City of Milwaukee complied with the statutory requirement that it contain “a concise statement of [the ordinance’s] nature” -- whether voters were informed of the contents of the ordinance.

Milwaukee Circuit Court Judge Thomas Cooper declared the ordinance “invalidly enacted and unconstitutional.” 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 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.

Nearly 70 percent of voters approved the referendum for paid sick leave in the November 2008 election.