State Law Changes

May 20, 2009 Update

No Updates as of May 20, 2009

Family, Medical and Parental Leaves Law

Arkansas has enacted a law concerning state employees' eligibility for the catastrophic leave program. An employee may be eligible for catastrophic leave when the employee has been employed by the state for more than two years or was previously employed by a public school district or state-supported institution of higher learning for more than two years. A person who was employed by a public school district or state-supported institution of higher learning for less than two years also is eligible for catastrophic leave if (1) the person's combined years of employment with the state and with a public school district or state-supported institution of higher learning totals more than two years; and (2) the lapse in the person's employment between the state and a public school district or state-supported institution of higher learning is less than six months (Act 870 (H. 1680), L. 2009, enacted April 6, 2009, at AR ¶4-7000).

Health Insurance Benefit Coverage Law

Health benefit plans must cover costs associated with orthotic devices, orthotic services, prosthetic devices, and prosthetic services. Limits on coverage may not be less than 80 percent of Medicare allowables as defined by the Center for Medicare and Medicaid Service's common procedure coding system as of January 1, 2009. Plans may require prior authorization for the devices and services in the same manner as required for other covered benefits. They may also impose copayments, deductibles or coinsurance if the amounts are no greater than those applicable to other plan benefits (Act 950 (H. 2244), L. 2009, enacted April 6, 2009, at AR ¶4-4000).

In addition, health benefit plans must offer coverage for hearing aids or hearing instruments sold on or after January 1, 2010, by professionals licensed by the state to dispense them. Coverage must be for at least $1,400 per ear for each three-year period, beginning on the first day of coverage, and may not be subject to policy deductibles or copayments (Act 1179 (H. 1930) L. 2009, enacted April 7, 2009, at AR ¶4-4000).

New Hire Reporting Law

The state has amended its new hire reporting law. The Department of Workforce Services is now in charge of the State New Hire Registry (Act 802 (S. 429), L. 2009, at AR ¶4-1600).

Smoking in the Workplace Law

The Clean Air on Campus Act of 2009 will prohibit smoking on each campus of state-supported institutions of higher education beginning on August 1, 2010. The law is intended to protect students, employees and visitors from secondhand smoke on campus (Act 734 (H. 2007), L. 2009, at AR ¶4-2700).

Health Insurance Benefit Coverage Law

The Supreme Court has refused to issue a stay preventing the city of San Francisco from enforcing an ordinance requiring employers to provide health care for their employees or pay a fee to help defray the city's costs in providing health care to uninsured workers. The Golden Gate Restaurant Association filed an application for stay pending the filing and disposition of a petition for a writ of certiorari. However, Justice Anthony Kennedy, as Circuit Justice, for a second time denied the association's request to stay enforcement. On March 9, 2009, an en banc Ninth Circuit narrowly voted—over the dissents of eight judges—to deny review of a panel ruling upholding the ordinance in the face of a challenge brought by the trade group on ERISA preemption grounds. The High Court is expected to decide this fall whether it will grant cert in the case. In the meantime, San Francisco employers must now comply with the ordinance. Employers with 20 to 99 workers must pay the city $1.23 per hour worked, and companies with more than 100 employees must pay $1.85 per hour worked. Employers should ensure they have satisfied the spending requirement for 2008, and the first quarterly payment for 2009 is due April 30 (CA ¶5-4000).

Employment of Aliens Rule

The Department of Labor and Employment, Division of Employment and Training, Workforce Development Programs, has issued final rules implementing the Colorado Nonimmigrant Agricultural Seasonal Worker Pilot Program Act (Sections 8-3.5-101 et seq.). These regulations establish requirements for participation in the Program and ensure implementation of the Program complies with applicable federal and state law. The 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 Program is intended to ensure that Colorado agricultural employers have labor sufficient to meet the seasonal demands of the agriculture industry. 1104-01, Chapters 1 through 4, Sections 1-1 through 5-4, effective March 30, 2009. Paras ¶6-24,100.01 through ¶6-24,100.05.

Health Insurance Benefits Coverage Law

Colorado Governor Bill Ritter has signed “The Designated Beneficiary Agreement Act” (H.B. 1260, effective July 1, 2009), a measure which grants unmarried persons the right to designate each other as beneficiaries for health insurance and retirement benefits purposes. The statute allows gay and lesbian couples, and other unmarried couples, to establish numerous other rights for each other, including inheritance, benefits, and medical decision-making and hospital visitation rights (CO ¶6-4000).

COBRA Law

Individuals who did not have continuation of group health insurance coverage in effect on February 17, 2009, but who would be “assistance eligible” as defined in the American Recovery and Reinvestment Act of 2009 if continuation coverage had been in effect, may elect to continue such coverage if they elect not later than 60 days after they receive notice (H. 6719, L. 2009, Act 09-3, effective April 15, 2009, at CT ¶8-4200).

Sexual Orientation Discrimination Law

The state has enacted a law implementing the guarantee of equal protection under the constitution of the state for same-sex couples and the decision of the Connecticut Supreme Court in Kerrigan v. Commissioner of Public Health, ConnSCt, released October 10, 2008. The law also provides for the recognition of marriages and relationships providing substantially the same rights, benefits and responsibilities entered into in another state or jurisdiction, and provides for the merger of existing civil unions into marriages (File No. 680 (S. 899), L. 2009, enacted April 23, 2009, at CT ¶7-3100).

COBRA Law

Employees have the right to continue coverage for themselves and their dependents under the employer's health benefits plan for a period of three months, or for the period of time during which the employee is eligible for premium assistance under the American Recovery and Reinvestment Act of 2009, approved February 17, 2009. The 65% premium subsidy under ARRA is generally available for nine months of coverage. The extension is temporary and expires June 14, 2009 (90 days after enactment) (DC B. 159, enacted and effective March 16, 2009, at DC ¶9-4200).

Health Insurance Benefit Coverage Law

Health benefit plans must cover the cost of a voluntary HIV test performed during an insured's visit to a hospital emergency department, regardless of whether the test is necessary to treat the medical emergency. Benefits must include at least one emergency department HIV test per year, and may not be subject to additional deductibles or copayments (Act 620 (B. 487, D.C. Law No. 316), L. 2007, effective March 21, 2009, at DC ¶9-4000).

Family Leave Law

Every employer shall post and keep posted notices clearly setting forth the rights of employees provided by Hawaii's family leave law in a form prescribed by the Director of Labor and Industrial Relations in conspicuous places in every establishment where any employee is employed so as to permit the employee to observe readily a copy on the way to or from the employee's place of employment. Title 21, Chapter 398, at a section to be appropriately designated, as enacted by Act 48 (H.B 319), L. 2009, effective May 20, 2009. Para ¶12-22,450.30.

Fair Employment Practices Law

An employer was strictly liable for a supervisor’s sexual harassment of an employee even though he was not that employee’s supervisor, ruled the Illinois supreme court. Reversing an appellate court decision which found the alleged harasser was a “coemployee” and the employer was not liable because it took reasonable corrective measures upon learning of the harassment, the state supreme court based liability on the supervisor’s status as a supervisory employee. Although the employee and alleged harasser worked different shifts in different divisions, the court pointed to the plain language of the Illinois Human Rights Act, which stated “an employer is liable for the sexual harassment of its employees” and concluded it was irrelevant that the supervisor did not have direct authority over the complaining employee’s working conditions. There was no language in the Act that limited the employer’s liability based on the harasser’s relationship to the victim, continued the court. “Where the statutory language is clear, we may not read into it limitations that the legislature did not express.” Although the Act contains language limiting an employer’s liability “where the offending employee is either a ‘nonemployee’ or ‘nonmanagerial or nonsupervisory employee,’ “ the facts in this case did not fall within the limitation (Sangamon County Sheriff’s Dept v The IL Human Rights Comm’n, IllSCt, April 16, 2009, at IL ¶14-2500).

Health Insurance Benefit Coverage Law

Group and individual accident and health insurance policies, as well as managed care plans, must provide coverage for all medically necessary pain medication and pain therapy related to the treatment of breast cancer. Coverage must be provided on the same terms that are generally applicable to coverage for other conditions. In addition, insurers and HMOs must provide mammography coverage at no cost to the insured, and without application to annual or lifetime maximum benefits, unless a person does not comply with plan provisions regarding the use of contracted providers (Public Act 1045 (S. 1174), L. 2007, effective March 27, 2009, at IL ¶14-4000).

Health care coverage must also be provided for habilitative services (such as occupational therapy, physical therapy and speech therapy) for children under 19 with a congenital, genetic or early acquired disorder. A licensed physician must have diagnosed the disorder; the treatment must be administered by a licensed practitioner upon referral of the physician; and initial or continued treatment must be medically necessary and therapeutic, not experimental or investigational (Public Act 1049 (S. 101), L. 2007, effective January 1, 2010, at IL ¶14-4000).

Family Military Leave Law

The state's family military leave law was amended by adding a biological parent of the adoptive father or mother of the person ordered to active duty as a family member who may take military family leave, it also includes a biological child, adopted child, foster child or stepchild. The bill also made conforming changes to definitions of grandparent, parent, and sibling for purposes of military family leave. Title 22, Article 2, Chapter 13, Sections 22-2-13-2.5, 22-2-13-5, 22-2-13-9, 22-2-13-10, and 22-2-13-11, as amended and enacted by S.B. 356, L. 2009, effective July 1, 2009. Paras ¶15-22,451.025 15-22,451.05, ¶15-22,451.09, ¶15-22,451.10, ¶15-22,451.11

Child Labor Law

In response to last year's raid of the Agriprocessors meatpacking plant in Postville, Iowa, Governor Chet Culver (D) signed into law a bill (H.F. 618, effective July 1, 2009) that increases civil and criminal penalties against employers who violate the state's child labor laws. Key components of the legislation include: (1) creating a civil penalty for a child labor violation of a maximum fine of $10,000; and (2) increasing child labor criminal penalties from simple misdemeanors to serious misdemeanors, which gives county attorneys more authority to pursue criminal prosecution of child labor violations (IA ¶16-1500).

Civil Rights Act

Iowa Governor Chet Culver on April 28 signed Senate File 137, a bill that mandates pay equity in Iowa's workplaces. Senate File 137 provides that it is an unfair or discriminatory practice for an employer or agent of the employer to discriminate against any employee because of the age, race, creed, color, sex, sexual orientation, gender identity, national origin, religion or disability of such employee by paying wages at a rate less than that paid to other employees who are employed in the same business establishment for equal work on jobs that require equal skill, effort and responsibility and that are performed under similar working conditions. This equal pay protection, is incorporated into Iowa’s Civil Rights Act, applies to employers of four or more employees. Title VI, Subtitle I, Chapter 216, Sections 216.2, 216.216.6A and 216.15, as amended by S.F. 137, L. 2009, effective July 1, 2009. Paras ¶16-020,025, ¶16-20,025.02, ¶16-20,025.06A and ¶16-20,025.15

Fair Employment Practices Law

Iowa Governor Chet Culver on April 28 signed Senate File 137, a bill that mandates pay equity in Iowa's workplaces. Senate File 137 provides that it is an unfair or discriminatory practice for an employer or agent of the employer to discriminate against any employee because of the age, race, creed, color, sex, sexual orientation, gender identity, national origin, religion or disability of such employee by paying wages at a rate less than that paid to other employees who are employed in the same business establishment for equal work on jobs that require equal skill, effort and responsibility and that are performed under similar working conditions. This equal pay protection, which takes effect on July 1, 2009, will apply to employers of four or more employees (Iowa Office of the Governor and Lt. Governor Press Release, April 28, 2009; S. 137, L. 2009, at IA ¶16-2500).

Wage Payment Law

In response to last year's raid of the Agriprocessors meatpacking plant in Postville, Iowa, Governor Chet Culver (D) signed into law a bill (H.F. 618) that strengthens the state's wage payment laws. The civil penalty for failing to pay an employee's wages has been increased from $100 to $500 per pay period (IA ¶16-1200).

Minimum Wage Law

Effective January 1, 2010, the minimum wage rate in Kansas will increase from $2.65 per hour to $7.25 per hour. This rate does not apply to employers and employees covered under the federal Fair Labor Standards Act. For those receiving tips and gratuities, a minimum wage of at least $2.13 per hour will be required; if the minimum wage for tipped employees plus the tips and gratuities actually received do not equal at least $7.25 per hour, the employer must make up the difference (Ch. 115 (S. 160), L. 2009, enacted April 23, 2009, at KS ¶17-1000).

No Updates as of May 20, 2009

Equal Pay Law

The state has enacted a law providing that an employer may not prohibit an employee from disclosing the employee's own wages or from inquiring about another employee's wages if the purpose of the disclosure or inquiry is to enforce the rights granted by the state's equal pay law. Title 26, Chapter 7, Subchapter II, Section 628, as amended by P.L. 29 (S.B. 33), L. 2009, effective 91 days after the adjournment of the Legislature. Para ¶20-23,100.02.

Fair Employment Practices Law

The state has enacted a law providing that an employer may not prohibit an employee from disclosing the employee's own wages or from inquiring about another employee's wages if the purpose of the disclosure or inquiry is to enforce the rights granted by the state's equal pay law (P.L. 29 (S. 33), L. 2009, at ME ¶20-2500).

Workers' Compensation Law

The state has enacted a law providing that a health care facility is prohibited from knowingly charging a patient or the patient's insurer or the patient's employer as defined in the state's workers' compensation law for health care services it provided as a result of or to correct a mistake or preventable adverse event caused by that health care facility. Under previous law, employers were not specified (Ch. 31 (H. 258), L. 2009, enacted April 16, 2009, at ME ¶20-4300).

Fair Employment Practices Law

Following the enactment of the federal Lilly Ledbetter Fair Pay Act (P.L. 111-2), Maryland Governor Martin O’Malley (D) signed into law a bill on April 14 extending the time period for which employees may seek relief for an unlawful employment practice. Called the Lilly Ledbetter Civil Rights Restoration Act (S. 368/H.B. 288), the law clarifies that an unlawful employment practice occurs with respect to compensation discrimination, when: (1) a discriminatory compensation decision or other practice is adopted; (2) an individual becomes subject to a discriminatory compensation decision or other practice; or (3) an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits or other compensation is paid, resulting wholly or partly from the discriminatory compensation decision or other practice. The law authorizes the recovery of back pay for up to two years preceding the filing of a complaint for employment discrimination based on an unlawful employment practice that occurred outside the statute of limitations for filing a complaint, but was similar or related to an unlawful practice with regard to discrimination in compensation that occurred during the complaint filing period. The law will take effect October 1, 2009, and can be found at: http://mlis.state.md.us/2009rs/billfile/sb0368.htm#Subjects (MD ¶21-2500).

Preemployment Inquiries Law

Effective October 1, 2009, the county administrative officer of Baltimore county or a designee of the county administrative officer, which shall be the director of human resources or the director's designee, may request from the central repository a state and national criminal history records check for a prospective employee or volunteer of the county (Ch. 28 (H. 549), L. 2009, at MD ¶21-9000).

Equal Opportunity in State Employment E.O. 2008-11

Executive Order 2008-22, signed by Governor Jennifer M. Granholm on December 18, 2008, established the State Equal Opportunity and Diversity Council to ensure equal access and opportunities in the recruitment, hiring, promotion, and retention of employees in the state's classified service without regard to religion, race, color, national origin, age, sex, sexual orientation, gender identity or expression, height, weight, marital status, partisan considerations, genetic information, or a disability that is unrelated to the person's ability to perform the duties of a particular job or position. Executive Order 2008-22, signed December 18, 2008, rescinds Executive Order 1996-13. ¶23-23,300.

Health Insurance Benefit Coverage Law

Michigan’s administrative rules that prohibit discretionary clauses in insurance contracts or policies constitute laws regulating insurance under ERISA's savings clause and, thus, are not preempted by ERISA, the Sixth Circuit Court of Appeals has ruled. The rules prohibit plan administrators from having "unfettered discretionary authority to determine benefit eligibility or to construe ambiguous terms of a plan," said the court (American Council of Life Insurers, et. al. v. Ross (6thCir 2009) No. 08-1406, at MI ¶23-4000).

Preemployment Inquiries Law

The state has revised the Commercial Driver's License (CDL) Act to impose responsibilities on employers of commercial motor vehicle drivers. Specifically, such employers must require any person who applies to be a commercial motor vehicle driver to provide the employer, at the time of the application, with specified employment-related information about the 10 years preceding the date of application (H. 1115, L. 2009, effective July 1, 2009, at MS ¶25-9000).

Child Support Enforcement Law

The definition of “income” has been amended to exclude mandatory retirement and disability contributions and union dues (H. 133, L. 2009, effective October 1, 2009, at MT ¶27-5500).

Health Insurance Benefit Coverage Law

A new law in Montana clarifies the insurance coverage requirements for reconstructive breast surgery following a mastectomy. Coverage must be provided for: (1) all stages of reconstruction of the breast on which a mastectomy has been performed; (2) surgery and reconstruction of the other breast to produce a symmetrical appearance; and (3) prosthetics and physical complications of a mastectomy including lymphedemas. Coverage may be subject to annual deductibles and coinsurance consistent with other benefits under the policy, certificate or contract (Ch. 67 (H. 151), L. 2009, effective July 1, 2009, at MT ¶27-4000).

Military and Emergency Services Leave Law

Effective July 1, 2009, an employee of the state or of any political subdivision who is a member of the organized militia of this state or who is a member of the organized or unorganized reserve corps or military forces of the United States and who has been an employee for a period of at least six months must be given leave of absence with pay accruing at a rate of 120 hours in a calendar year, or academic year if applicable, for performing military service.

Unused military leave must be carried over to the next calendar year, or academic year if applicable, but may not exceed a total of 240 hours in any calendar or academic year (H. 466, L. 2009, at MT ¶27-7200).

Workers' Compensation Law

The state has enacted a law exempting from the Workers' Compensation Act the employment of persons performing the services of an intrastate or interstate common or contract motor carrier if hired by a freight forwarder (H. 378, L. 2009, effective April 16, 2009, at MT ¶27-4300).

Employment of Aliens in Public Employment—Topic added.

Governor Dave Heineman (R) signed into law a bill (LB 403) on April 8, 2009, requiring public employers ( i.e., state agencies and political subdivisions) and contractors to register with and use the federal government's E-Verify program to determine the employment eligibility of new hires starting October 1. Public contractors are defined as ``any contractor or his or her subcontractor who is awarded a contract by a public employer for the physical performance of services within the State of Nebraska.’’ The law also requires Nebraska’s public employers to verify the legal status of all applicants trying to collect public benefits, directing the public employer not to provide benefits to a persons’ illegally present in the United States. The bill was sponsored by Senator Russ Karpisek (R-Wilber) at the governor's request. The law is not yet codified and reads as enacted by L.B. 403, L. 2009, effective Oct. 2, 1009. Paras ¶28-24,050.01 through ¶28-24,050.07.

Preemployment Inquiries Law

Nebraska Governor Dave Heineman (R) has signed into law a bill (LB 403) requiring public employers and contractors to register with and use the federal government's E-Verify program to determine the employment eligibility of new hires. The law will take effect starting October 1, 2009 (NE   ¶28-9000).

Minimum Wage Law

Effective July 1, 2009, the minimum wage rate for employees whose employers have made available qualifying health benefits will increase from $5.85 per hour to $6.55 per hour. The minimum wage rate for employees who do not receive such health benefits will increase from $6.85 per hour to $7.55 per hour. These increases are a result of the annual adjustment to Nevada’s minimum wage as required by the 2006 amendment to the Nevada Constitution. Future adjustments to the minimum wage rate will depend on cumulative increases to the federal minimum wage and the consumer price index (State of Nevada Governor Jim Gibbons Press Release, April 1, 2009; State of Nevada Office of the Labor Commissioner Minimum Wage 2009 Annual Bulletin, April 1, 2009, at NV ¶29-1000).

Overtime Pay Law

Nevada employers are required to pay one and one-half times an employee's regular rate whenever an employee who is paid less than one and one-half times the applicable minimum wage rate works for more than 40 hours in any workweek or more than eight hours in any workday, unless otherwise exempted. Effective as of July 1, 2009, daily overtime may apply if the employee to whom qualifying health benefits have been made available by the employer is paid less than $9.825 per hour. For employees without available health benefits, daily overtime may apply if an employee is paid less than $11.325 per hour (State of Nevada Office of the Labor Commissioner Daily Overtime 2009 Annual Bulletin, April 1, 2009, at NV ¶29-1100).

No Updates as of May 20, 2009

Health Insurance Benefit Coverage Law

Effective June 19, 2009, group health insurers and HMOs in New Mexico will be required to provide coverage to eligible individuals 19 years old or younger (or 22 years old or younger, if in high school) for the diagnosis and treatment of autism spectrum disorder. Coverage must include: (1) well-baby and well-child screening for the presence of the disorder; and (2) treatment through speech therapy, occupational therapy, physical therapy and applied behavioral analysis. Maximum benefit amounts will apply--$36,000 annually and $200,000 in total lifetime benefits. Beginning January 1, 2011, these limits will be adjusted annually to account for changes in the medical component of the Consumer Price Index (Ch. 74 (S. 39), L. 2009, enacted April 2, 2009, at NM ¶32-4000).

Maximum Hours Law

New Mexico has repealed the portion of its statutes that specifies hours of work restrictions for women─Sections 50-5-1 through 50-5-17 of the New Mexico Statutes. Prior to this action by the legislature, the provisions had remained on the books, but could not be enforced due to the state’s equal rights amendment (Ch. 160 (H. 176), L. 2009, at NM ¶32-1300).

Minimum Wage Law

New Mexico has enacted a law that will make it a violation of the state Minimum Wage Act for an employer or any other person to discharge, demote, deny promotion to or in any other way discriminate against a person in terms or conditions of employment in retaliation for the person asserting a claim or right under the Minimum Wage Act or for assisting another person to do so or for informing another person about their employment rights or other rights provided by law.

The law also provides that a civil action to enforce the law relating to the payment of wages must be commenced within three years after a violation last occurs. This three-year period is to be tolled during an investigation of an employer by the Labor Relations Division of the Department of Workforce Solutions. Upon conviction, violators would be sentenced under the state's criminal procedure law, which provides for penalties for a misdemeanor of up to $1,000 and/or imprisonment in the county jail of up to one year, where convicted. Those who fail to pay the required minimum wage would also be liable for any unpaid or underpaid minimum wages plus interest, and an additional amount equal to twice the unpaid or underpaid wages. Further, a court may order appropriate injunctive relief, including requiring the employer to post in the place of business a notice that describes the violations or a copy of a cease and desist order ( Ch. 104 (H. 489), L. 2009, enacted April 6, 2009, and effective June 19, 2009, at NM ¶32-1000).

Overtime Pay Law

Effective June 19, 2009, an employer that violates the state’s overtime requirements is liable to affected employees in the amount of their unpaid or underpaid wages plus interest, and in an additional amount equal to twice the unpaid or underpaid wages. In addition, a court may also order appropriate injunctive relief, including requiring the employer to post in the place of business a notice describing violations by the employer or a copy of a cease and desist order. Also, any civil action to enforce the law must be commenced within three years after a violation last occurs. Retaliation against an employee who asserts a right or claim is prohibited (Ch. 104 (H. 489), L. 2009, enacted April 6, 2009, and effective June 19, 2009, at NM ¶32-1100).

No Updates as of May 20, 2009

No Updates as of May 20, 2009

Breastfeeding Rights in Employment Law—Topic added.

North Dakota has enacted a law exempting breastfeeding from the offense of indecent exposure and giving women the right to breastfeed in any location, public or private, where the woman and child are otherwise authorized to be. Further, the law delineates what constitutes an "infant friendly" employer for purposes of an employer's promotional materials. The law is to be codified at Title 23, Chapter 23-12 and reads as enacted by S.B 2344, L. 2009, effective Aug. 1, 2009. ¶35-22,650.01.

Disability Law

North Dakota has amended its disability law to change language referring to “assistance dogs” to “service animals”. Individuals with disabilities and persons training service animals will be entitled to be accompanied by service animals in places of public accommodations (S. 2211, L. 2009, enacted May 20, 2009, at ND ¶35-2600).

Drug Testing Law

It is a Class A misdemeanor for a person to willfully defraud a urine test that is designed to detect the presence of a chemical substance or a controlled substance. Effective August 1, 2009, it will also be a Class A misdemeanor to knowingly possess, distribute, or assist in the use of a device, chemical, or real or artificial urine advertised or intended to be used to alter the outcome of a urine test (H. 1244, L. 2009, enacted May 20, 2009, and effective August 1, 2009, at ND ¶35-8600).

Meal and Rest Periods Law

North Dakota has enacted a law exempting breastfeeding from the offense of indecent exposure and giving women the right to breastfeed in any location, public or private, where the woman and child are otherwise authorized to be. Further, the law delineates what constitutes an "infant friendly" employer for purposes of an employer's promotional materials (S. 2344, L. 2009, enacted May 20, 2009, at ND ¶35-1400).

Workers' Compensation Law

The state has enacted a law relating to preferred providers for work-related injuries. During the first 30 (formerly, 60) days after a work injury, an employee of an employer who has selected a preferred provider may seek medical treatment for such injury only from that provider (S. 2432, L. 2009, at ND ¶35-4300).

No Updates as of May 20, 2009

No Updates as of May 20, 2009

No Updates as of May 20, 2009

Recordkeeping/Posters Law

Ruling in favor of Governor Donald Carcieri (R) and the Rhode Island Department of Administration, Rhode Island Superior Court Judge Mark Pfeiffer has upheld the legality of Rhode Island’s “Illegal Immigration Control Order,” (EO 08-01) which requires, among other things, that persons, businesses and contractors (and their subcontractors) doing business with the state participate in the federal government’s E-Verify program (Rhode Island Coal Against Domestic Violence v Carcieri, RISuperCt, No 08-5696, 4/3/09, at RI ¶41-9900).

No Updates as of May 20, 2009

No Updates as of May 20, 2009

Workers' Compensation Law

In a revised decision following a rare rehearing, the Texas Supreme Court reaffirmed an earlier holding that Entergy Gulf State, as a general contractor that provides workers' compensation insurance to a subcontractor, was protected from negligence claims brought when a subcontractor's employee was injured while working at one of Entergy's plants. The state high court's unanimous 2007 decision, which ruled that a premises owner could be a general contractor and, therefore, enjoy the exclusive remedy provisions, in essence created a "statutory employer." Although the Texas Workers' Compensation Act specifically confers statutory employer status on general contractors who qualify by providing workers' comp insurance for their subcontractors' employees, it says nothing about whether premises owners who act as their own general contractor are also entitled to employer status. In its revised decision, a now-divided high court ruled 6-3 that by taking out a workers' compensation policy for the entire worksite, Entergy did the very thing the Texas legislature had long tried to encourage. Whether a premises owner, general contractor, prime contractor, or subcontractor, Entergy is a subscriber of a workers' compensation policy and therefore satisfies the legislature's intent to ensure consistent and reliable coverage to all employees, the court concluded. H.B. 1657, a bill already introduced to overturn the court's ruling, has cleared a House committee. Insurance groups have vowed to fight the measure (Entergy v Summers, TexSCt, April 3, 2009, at TX ¶45-4300).

Employment of Aliens-State Employment Law

On March 23, 2009, Utah Governor Jon Huntsman signed into law a bill modifying definitions in the state’s comprehensive immigration law. The bill clarifies that the state’s comprehensive immigration law only applies to contracts for the procurement of services. The bill also makes certain technical changes, clarifying that employers must use the federal government’s E-Verify program, replacing the program’s former name, Basic Pilot. In addition, the bill allows undocumented workers who were employed by the state to receive retirement benefits pursuant to the state’s Retirement and Insurance Benefit Act; this is an exception to the requirement under the state’s comprehensive immigration law that denied benefits to state employees who were undocumented workers. Title 63G, Chapter 11, Sections 63G-11-102 through 63G-11-104, as amended by S.B. 39, L. 2009 and S.B. 40, L. 2009, effective July 1, 2009. ¶46-24,050.02 through ¶46-24,050.04.

Preemployment Inquiries Law

The Employment Selection Procedures Act is enacted effective May 12, 2009. This law applies to employers of 15 or more employees and provides that, as part of the employment selection process, an employer cannot ask a job applicant to supply his or her social security number, date of birth, or driver license number until either (a) an applicant is offered a job or (b) with the applicant’s consent, at the point in the application process where the employer would be, where applicable, required to obtain a criminal background check, credit history, or driving record. This information cannot be used for marketing, profiling, reselling of the information, or any similar use, but such information may be provided to a government official at the request of that official. Employers must maintain a specific policy regarding the retention, disposition, access to, and confidentiality of the information obtained, and must allow an applicant to review the policy, if requested, prior to providing any information as part of the initial application process. Information obtained as part of the employment selection process cannot be retained more than two years after the day the applicant provided the information to the employer, if the employer does not hire the applicant within that two-year period. Employers who violate the law can be ordered to cease and desist and may be required to pay a fine of up to $500 (H. 206, L. 2009, enacted March 24, 2009, and effective May 12, 2009, at UT ¶46-9000).

Recordkeeping/Posters Law

Under the Employment Selection Procedures Act, employers must maintain a specific policy regarding retention, disposition, access and confidentiality of information obtained from job applicants as part of the employment selection process. Information obtained on an individual applicant by an employer as part of an initial employment selection process, except where otherwise required by law, cannot be retained more than two years after the day on which the applicant provides the information to the employer, if an employer does not hire the applicant within that two-year period (H. 206, L. 2009, effective May 12, 2009, at UT ¶46-9900).

Marital Status Discrimination Law

On April 7, 2009, Vermont became the fourth state in the nation to legalize same-sex marriage, overriding a veto from Governor Jim Douglas (R) to make Vermont the first state to legalize same-sex marriage by statute (S. 115). The Vermont House of Representatives passed the bill by a vote of 100-49 after it cleared the state senate by a vote of 23-5 earlier in the day. In Vermont, a bill needs two-thirds support in each chamber to override a veto by the governor. Employers may experience an increase in requests for spousal benefit coverage now that same-sex marriage has been legalized in Vermont. The law will take effect September 1, 2009. The law can be found at http://www.leg.state.vt.us/docs/2010/bills/Passed/S-115.pdf. (VT ¶47-3200).

Child Labor Law

Effective July 1, 2009, no child under the age of 18 may be employed, permitted or suffered to work as a driver or helper on an automobile, truck, or commercial vehicle, except that a child who is at least 17 years old may drive automobiles or trucks on public roadways if certain criteria are met, including requirements that the vehicle's gross weight not exceed 6,000 pounds, the driving occur in daylight hours, and the driving occur within 30 miles of the place of employment (Ch. 218 (H. 2495), L. 2009, at VA  ¶48-1500).

COBRA Law

Employees who are involuntarily terminated between September 1, 2008, and December 31, 2009, must be offered the option to continue their existing group health insurance coverage. Coverage shall continue for up to nine months following involuntary termination for those terminated on or after May 20, 2009, or following the date of required notice, contingent upon the involuntarily terminated employee's eligibility for premium assistance under the American Recovery and Reinvestment Act (H. 2024, L. 2009, enacted and effective May 20, 2009, at VA  ¶48-4200).

Health Insurance Benefit Coverage Law

For policies, contracts and plans delivered, issued for delivery, reissued or extended in Virginia on and after January 1, 2010, health insurers must provide coverage for medically necessary prosthetic devices, as well as their repair, fitting, replacement and components. Insurers may not impose any annual or lifetime dollar maximums on prosthetics coverage (other than those that apply in aggregate to all items covered under the policy), nor may they impose coinsurance in excess of 30 percent of allowable charges for prosthetic devices or services when furnished by an in-network provider. Preauthorization may be required to determine medical necessity (S. 1116, L. 2008, enacted May 20, 2009, at VA  ¶48-4000).

Recordkeeping/Posters Law

Effective July 1, 2009, every employer shall post in the same location where other employee notices required by state or federal law are posted any notice provided by the Virginia Department of Social Services that informs employees that they may be eligible for federal and state earned income tax credits and may apply for the credit on their tax returns or receive the credit in advance payments during the year (Ch. 698 (S. 860), L. 2008, enacted March 30, 2009, at VA  ¶48-9900).

Wage Payment Law

Employers will be authorized to pay wages and salaries to employees hired after January 1, 2010, via credit card to a prepaid debit card or card account, without affirmative employee consent, if an employee fails to designate a financial institution to which payment could be made by electronic automated fund transfer and the employer arranges for an employee to have the ability to make at least one free withdrawal or transfer per pay period using the card at participating financial institutions (Ch. 728 (S. 1264), L. 2008, enacted March 30, 2009, at VA  ¶48-1200).

Health Insurance Benefit Coverage Law

For health benefit plans issued or renewed on or after January 1, 2010, health carriers must reduce any organ transplant waiting period by the amount of time a covered person had prior creditable coverage. Benefits are subject to all other plan terms and conditions, including coinsurance, deductibles and copayments (Ch. 82 (H. 1308), L. 2009, enacted April 13, 2009, at WA ¶49-4000).

Law Against Discrimination Law

A nursing mother has the civil right to breastfeed her child in any place of public resort, accommodation, assemblage, or amusement. Also, it is a discriminatory practice for any person or the person's agent or employee to commit an act which directly or indirectly results in any distinction, restriction, or discrimination, or the requiring of any person to pay a larger sum than the uniform rates charged other persons, or the refusing or withholding from any person the admission, patronage, custom, presence, frequenting, dwelling, staying, or lodging in any place of public resort, on the basis as a breastfeeding mother. Title 49, Chapter 49.60, Sections 49.60.030 and 49.60.215, as amended by Ch. 164 (H.B. 1596), L. 2009, effective July 26, 2009. Paras ¶50-20,025.30 and ¶50-20,025.215.

Disability Law

An employee who alleged that he was fired in violation of the public policy against disability discrimination could not proceed with his wrongful discharge claim, the Wyoming supreme court ruled, finding the employee failed to first exhaust administrative remedies even though he had been informed that his administrative claim had been closed. The employee, who suffered from “connective tissue disorder,” experienced a series of physical problems during his seven years of employment that required several surgeries. After he was terminated for poor performance, he filed a claim with the state’s fair employment agency alleging that his discharge was based on his employer’s perception that he was disabled. The agency attempted to conciliate the employee’s claim and when that failed, the employee was informed the matter was closed and the case was referred to the EEOC. Upon receiving a right to sue letter from the EEOC, the employee brought a state court claim for wrongful discharge in violation of public policy. However, the trial court refused to hear the claim, ruling that the employee could have pursued a hearing in front of an independent hearing officer under the state’s Administrative Procedure Act. Affirming, the state supreme court found that the employee failed to avail himself of the fair hearing process, and thus, because there was another remedy or violation of the public policy, he could not pursue his wrongful discharge claim (Kolar v R&P, Inc, WyoSCt, April 21, 2009, at WY ¶52-2600).