State Law Changes

May 19, 2010 Update

Military and Emergency Services Leave Law

The benefit of a military leave of absence has been extended to members of the National Disaster Medical System (Act No. 2010-259 (S. 128), L. 2010) and members of the civilian auxiliary of the U.S. Air Force known as the Civil Air Patrol (Act No. 2010-535 (S. 91), L. 2010) (AL ¶1-7200).

Access to Personnel Files in Public Employment Rule

Effective June 5, 2010, the Department of Administration issued final regulations requiring state agency heads to retain I-9 forms and documents required by law to prove employment eligibility in a separate file that is not part of the employee’s official personnel file. Currently, these documents are kept within the employee’s official personnel file. In addition, disciplinary actions of state employees and employees’ responses to disciplinary actions are to be open to inspection and copying under the Arizona Public Records Law. Title 2, Chapter 5, Article 1, Section R2-5-105, as amended effective June 5, 2010. Para 3-23,750.01.

Legal Workers Act

Arizona Governor Jan Brewer (R) on April 23, 2010, signed into law sweeping legislation (S.B. 1070) that would give police broad powers to enforce the state’s immigration laws, require immigrants to carry valid documents proving their legal status, and make it a misdemeanor to attempt to hire, pick up, and transport day laborers. The law will take effect 90 days after the close of the regular legislative session. According to a summary of the provisions, the law: (1) makes the willful failure to complete or carry an alien registration document a class 1 misdemeanor; (2) allows immigration status to be determined by state law enforcement officers who are authorized by the federal government to verify or ascertain an alien’s immigration status; (3) restricts so-called “sanctuary” policies; therefore, officials and agencies are required to reasonably attempt to determine the immigration status of a person involved in lawful contact with them where reasonable suspicion exists regarding the immigration status of the person, except if the determination may hinder or obstruct an investigation; (4) allows legal residents to bring an action in superior court to challenge state officials and agencies that adopt or implement a policy that limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law; (5) mandates that law enforcement officials and agencies cannot solely consider race, color or national origin when implementing these provisions, except as permitted by the US or Arizona Constitution; (6) aimed at day laborers, makes it a class 1 misdemeanor for an occupant of a motor vehicle that is stopped on a street, roadway, or highway to attempt to hire or hire and pick up passengers for work at a different location, if the motor vehicle blocks or impedes the normal movement of traffic; employers may have an affirmative defense of entrapment; (7) aimed at day laborers, makes it a class 1 misdemeanor for a person to enter a motor vehicle that is stopped on a street, roadway, or highway in order to be hired by an occupant of the motor vehicle and to be transported to work at a different location, if the motor vehicle blocks or impedes the normal movement of traffic; (8) specifies that it is a class 1 misdemeanor for a person who is an undocumented worker to knowingly apply for work, solicit work in a public place, or perform work as an employee or independent contractor; and (9) requires employers to keep a record of the employment verification from E-Verify for the duration of an employee’s employment, or three years, whichever is longer. Title 23, Chapter 2, Article 2, Sections 23-212, 23-212.01, and 23-214, as amended by S.B. 1070, L. 2010, enacted April 23, 2010 and effective 90 days after the close of the regular legislative session. Paras 3-24,051.01, 3-24,051.021 and 3-24,051.04.

Military and Emergency Services Leave Law

The state’s military leave law has been amended to extend the employment rights previously afforded to members of the national guard to reservists as well (Ch. 73 (H. 2539), L. 2010, at AZ ¶3-7200).

Preemployment Inquiries Law

Arizona Governor Jan Brewer (R) on April 23, 2010, signed into law sweeping legislation (S. 1070) that would give police broad powers to enforce the state’s immigration laws, require immigrants to carry valid documents proving their legal status, and make it a misdemeanor to attempt to hire, pick up, and transport day laborers. The law will take effect 90 days after the close of the regular legislative session.

According to a summary of the provisions, the law: (1) makes the willful failure to complete or carry an alien registration document a class 1 misdemeanor; (2) allows immigration status to be determined by state law enforcement officers who are authorized by the federal government to verify or ascertain an alien’s immigration status; (3) restricts so-called “sanctuary” policies; therefore, officials and agencies are required to reasonably attempt to determine the immigration status of a person involved in lawful contact with them where reasonable suspicion exists regarding the immigration status of the person, except if the determination may hinder or obstruct an investigation; (4) allows legal residents to bring an action in superior court to challenge state officials and agencies that adopt or implement a policy that limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law; (5) mandates that law enforcement officials and agencies cannot solely consider race, color or national origin when implementing these provisions, except as permitted by the US or Arizona Constitution; (6) aimed at day laborers, makes it a class 1 misdemeanor for an occupant of a motor vehicle that is stopped on a street, roadway, or highway to attempt to hire or hire and pick up passengers for work at a different location, if the motor vehicle blocks or impedes the normal movement of traffic; employers may have an affirmative defense of entrapment; (7) aimed at day laborers, makes it a class 1 misdemeanor for a person to enter a motor vehicle that is stopped on a street, roadway, or highway in order to be hired by an occupant of the motor vehicle and to be transported to work at a different location, if the motor vehicle blocks or impedes the normal movement of traffic; (8) specifies that it is a class 1 misdemeanor for a person who is an undocumented worker to knowingly apply for work, solicit work in a public place, or perform work as an employee or independent contractor; (9) requires employers to keep a record of the employment verification from E-Verify for the duration of an employee’s employment, or three years, whichever is longer.

Now signed into law, S. 1070, when combined with the state’s existing Legal Arizona Workers Act, which suspends and revokes the business licenses of employers that intentionally or knowingly employ undocumented workers, will give Arizona the toughest immigration measure in the country (AZ ¶3-9000).

Violence in the Workplace Law

Arizona Governor Jan Brewer has signed a “constitutional carry” bill which in most cases lifts the requirement that a person obtain a concealed weapon permit in order to carry a concealed firearm (Ch. 59 (S. 1108), L. 2010; Office of the Governor Statement, April 16, 2010, at AZ ¶3-3300).

Fair Employment and Housing Commission Rules and Regulations

The California Fair Employment and Housing Commission has issued proposed rulemaking to amend existing regulations on “Sex Discrimination: Pregnancy, Childbirth or Related Medical Conditions” (2 CCR Sections 7291.2 through 7291.16). The purpose of the proposed rule amendments is to update the regulations to conform to statutory changes to the Fair Employment and Housing Act passed in 1999 (Ch. 591 (A.B. 1670), L. 1999) and 2004 (Ch. 647 (A.B. 2870), L. 2004). The 1999 legislation amended Government Code Section 12945 to require employers to reasonably accommodate female employees affected by pregnancy, childbirth, or related medical conditions. The 2004 legislation amended the California Government Code Section 12945 to eliminate distinctions between employers with 15 or more employees covered by Title VII of the Civil Rights Act of 1964 (42 U.S.C. Section 2000e, et seq.; P.L. 88-352) and employers with five to 14 employees covered only by the Fair Employment and Housing Act (FEHA) (California Government Code Section 12900 et seq.). The proposed amendments to the regulations also provide more clarity and guidance to employers and employees regarding preventing discrimination on pregnancy, childbirth, or related medical conditions, and reasonable accommodation, transfer and disability leave for women affected by pregnancy, childbirth, or related medical conditions, as mandated by California Government Code Sections 12940, 12943, and 12945.

The proposed amendments would impact any person employing five or more employees, both full and part-time, or any person acting as an agent of the employer, directly or indirectly, per California Government Code Section 12926(d) and Section 7286.5(a) of the regulations. Employer includes the state, as well as any county, political or civil subdivision of the state and cities, regardless of the number of employees. Employer does not include a religious association or corporation not organized for private profit.

Under these rule changes, except as excused by a permissible defense, covered employers would be, because of pregnancy of an employee or applicant, prohibited from refusing to hire or employ; refusing to select an employee or applicant for a training program leading to employment or promotion; refusing to promote an employee; barring or discharging the applicant or employee from employment or a training program leading to employment or promotion; refusing to provide health benefits for pregnancy if the employer provides such benefits for other temporary disabilities; discriminating against an applicant or employee in terms, conditions or privileges of employment; harassing an applicant or employee because of pregnancy; retaliation because of pregnancy or because the employee has exercised her right to reasonable accommodation, to transfer, or to take a pregnancy disability leave (of up to 4 months); refusing to provide reasonable accommodation for an employee who is temporarily affected by pregnancy; refusing to transfer the employee affected by pregnancy; refusing to grant the employee disabled by pregnancy a pregnancy disability leave; or otherwise discriminating against the applicant or employee by any practice prohibited on the basis of sex. A permissible defense would include a bona fide occupational qualification, business necessity, or where the practice is otherwise required by law. The impact of intermittent or reduced work schedules on an employee’s four-month pregnancy related leave is also clarified.

Definitions are amended, including the definition of “disabled by pregnancy,” to include severe “morning sickness,” or time off for prenatal or postnatal care, bed rest, post-partum depression, or recovery from childbirth, stillbirth or miscarriage.

Reasonable accommodation because of pregnancy would be redefined to include, but not be limited to, an employer: (1) modifying work practices; (2) modifying work duties; (3) modifying work schedules to permit earlier or later hours; (4) acquiring or modifying equipment or devices, and other similar actions; (5) providing more frequent rest breaks, including breaks to eat to mitigate morning sickness; (6) providing a rest area; (7) modifying lifting requirements; and (8) allowing an employee to sit rather than stand or otherwise to alter her physical work requirements to better accommodate her pregnancy.

The Commission will hold public hearings on June 1 in Los Angeles, starting at 10:00 a.m., at the Ronald Regan State Office Building Auditorium, 300 S. Spring Street, and on June 2 in San Francisco, at the Hiram Johnson State Building Auditorium, 455 Golden Gate Avenue, starting at 10:00 a.m., to give the public an opportunity to present statements or arguments, orally or in writing, relevant to the proposed actions. Written comments must be submitted to the Commission by June 2, 5:00 p.m., either at the Commission’s offices, delivered in person to the Commission personnel at either hearing, or through the Commission E-mail. Written comments should be addressed to Ann M. Noel, Executive and Legal Affairs Secretary, Fair Employment and Housing Commission, 455 Golden Gate Avenue, Suite 10600, San Francisco, CA 94102; or sent by E-mail (preferred) to regs@fehc.ca.gov.

Health Insurance Benefit Coverage Law

The City of San Francisco has released its 2011 health care expenditure rates under its Health Care Security Ordinance (HCSO). Employers with 100 or more employees must spend at least $2.06 per hour for each covered employee, and employers with 20-99 employees (or nonprofit corporations with 50-99 employees) must spend at least $1.37 per hour for each employee. Note that the legality of the HCSO is still being challenged in the courts, but employers must continue to comply in the meantime (San Francisco General Services Agency, April 2010, at CA ¶5-4000).

Labor Commissioner discusses state workplace lactation accommodation laws that set standard for new federal regulations

On May 13, 2010, Labor Commissioner Angela Bradstreet joined government health agencies and area hospitals at a seminar for employers to discuss the state’s workplace lactation accommodation laws and the benefits of effective accommodation programs. “Today many women elect to return to work soon after giving birth,” said Bradstreet. “They want to be a valuable member at work and still be able to care for their newborn. Compliance with California’s lactation laws is not only the right thing to do for these employees; it is also smart business because there are many cost benefits to employers.”

California was among the first states to enact legislation for lactation accommodation. Labor Code sections 1030 and 1031 became law in 2001, and mandate every employer, regardless of size, to provide a reasonable amount of time to accommodate expressing of breast milk and to make reasonable efforts to provide the employee with the use of a room or other location, other than a bathroom, to express milk in private. Bradstreet discussed California’s lactation accommodation law during a forum in March at the White House hosted by the President and the first lady. California’s law was a basis for the little-known provision included in the major health care reform bill that the President signed into law in March. The federal lactation accommodation requirements are nearly identical to California’s.

During the seminar, Bradstreet and Denise Padres, Deputy Chief of the Division of Labor Standards Enforcement, answered questions and highlighted benefits for companies that provide workplace lactation programs, including more satisfied employees and cost savings to the company. “Many businesses discover that having an effective lactation support program is good for their bottom line,” said Bradstreet. “These companies see lower turnover rates, a reduction in health care costs, higher productivity and worker loyalty.”

Bradstreet also emphasized the need for employees to report violations of the lactation accommodation law, noting that it is not a law that can be addressed with enforcement sweeps. Since 2008, the Labor Commissioner’s office has been citing companies for failure to provide lactation accommodation as a result of investigations initialized after an employee filed a complaint. (California Labor Commissioner Press Release IR# 10-13, May 13, 2010).

Minimum Wage Law

The current living wage for Emeryville is $12.82 per hour. The living wage rate for Petaluma is set at $12.46 per hour with employer contribution toward medical benefits, and $13.99 per hour without employer contribution toward medical benefits (CA ¶5-1000).

Anti-Bias Rules: Department of Personnel–State Employment

Disputes asserting claims or grounds within the Director’s jurisdiction as authorized by Colorado Constitution, statute, or these rules must be submitted to the Director at Colorado State Personnel Board, Attn: Appeals Processing, 633 17TH Street, Suite 1320, Denver, CO 80202. 4 CCR 801-1, Chapter 8, Section 8-78. Para 6-20,076.01.

Criminal Background Checks Law

Employers hiring those with a criminal past will have some protection from liability under legislation signed March 25. House Bill 1023 provides that information regarding the criminal history of an employee or former employee may not be introduced as evidence in a civil action against an employer or the employer's employees or agents that is based on the employee or former employee's conduct if (a) the nature of the criminal history does not bear a direct relationship to the facts underlying the cause of action; or (b) a court sealed any record of a criminal case or the employee for former employee received a pardon before the act giving rise to a civil action occurred; or (c) the record is of an arrest or charge that did not result in a criminal conviction; or (d) the employer or former employee received a deferred judgment at sentence and the deferred judgment was not revoked. This law will not supersede any statutory requirement to conduct a criminal history background check or consider criminal history records in hiring for particular types of employment. Title 8, Article 2, Part 2, Section 8-2-201, as amended by H.B. 1023, L. 2010, and effective Aug. 11, 2010. Para 6-23,600.40.

Family Leave-State Employee Rules

The family and medical leave coverage for state employees were extended on August 1, 2008 to include: (1) active duty military leave when a parent, child, or spouse experiences a qualifying event directly related to being deployed to a foreign country and (2) military caregiver leave for a parent, child, spouse, or next of kin who suffered a serious injury or illness in the line of duty while on active duty were clarified. 4 CCR Chapter 5, Sections 5-23 through 5-37, as amended effective May 1, 2010. Paras 6-22,500.01 through 6-22,500.15.

Preemployment Inquiries Law

The state’s Department of Revenue is now authorized to obtain fingerprint-based criminal history record checks for current and prospective department employees with access to driver's licenses and state identification cards or personal identifying information (H. 1011, L. 2010, at CO ¶6-9000).

Health Insurance Benefit Coverage Law

Florida’s House and Senate passed a joint resolution that proposes to amend the State Constitution to: (1) prohibit laws or rules compelling any individual, employer or health care provider to participate in any health care system; (2) allow individuals and employers to pay directly for lawful health care services (and prohibit penalties or fines related to such direct payment); and (3) permit the purchase and sale of health care insurance in private health care systems. The proposed constitutional amendment will appear on the ballot at the general election in November 2010 (or at an earlier special election) for approval or rejection by Florida voters (House Joint Resolution 37, passed April 22, 2010, at FL ¶10-4000).

Unemployment Insurance Law

The taxable wage base for 2010, which had been increased to $8,500 in 2009 legislation, has been reinstated at $7,000. The increase to $8,500 now will occur on January 1, 2012. The amount will then decrease again to $7,000 on January 1, 2015 (FL ¶10-1700).

Unemployment Insurance Law

Indiana has pushed back the effective date of its taxable wage base increase. Instead of increasing to $9,500 on January 1, 2010, the increase will now go into effect on January 1, 2011 (S. 23, L. 2010, at IN ¶15-1700).

Genetic Testing Law

A new law in Iowa prohibits health insurers from discriminating against an individual (or family member) based on genetic information or genetic testing. Health insurers may not consider a genetic propensity, susceptibility or carrier status as a preexisting condition for purposes of limiting benefits, establishing rates or providing coverage, nor may they use genetic information or genetic testing for underwriting in the individual or group markets. Also, with certain exceptions, health insurers and third-party administrators may not release an individual’s genetic information without his or her prior written authorization for each disclosure. If a person commits and act in violation of this law, an injunction may be granted through an action in district court to prohibit the person from continuing such act. The action for injunctive relief may be brought by an aggrieved employee, labor organization member, or licensee, or aggrieved prospective employee, member, or licensee, the county attorney, or the attorney general. Title XVI, Subtitle 1, Chapter 729, Section 729.6, as amended by S.B. 2215, L. 2009 and H.B. 2531, L. 2009, effective July 1, 2010. Para 16-22,150.01.

Rules of Practice

The Iowa Civil Rights Commission amended its rules regarding the definition to distinguish the different types of mail and the conditions precedent to right to sue. The terms “certified mail,” “local mail,” and “mail or regular mail” were added to the rules. Complaints must be on file with the commission for at least 60 days and the right-to-sue request is submitted in writing with the signature of the complainant or the complainant’s representative, unless otherwise prohibited by state or federal rules or contractual agreements. Electronic signatures are permissible for right-to-sue requests. The date of request must be listed as well as the corresponding state and federal case numbers. 161 IAC Chapters 2 & 3, Sections 2.1(14) through 2.1(16) and 3.10(2), as amended effective June 9, 2010. Paras 16-20,125.02 and 16-20,125.0309.

Health Insurance Benefit Coverage Law

A new law in Kansas will require individual and group health insurance policies that provide prescription drug coverage to cover prescribed, orally administered anticancer medications on a basis that is no less favorable than covered intravenously administered or injected cancer medications. The requirement, which also applies to HMOs and medical/hospital service contracts, is valid for policies, plans and contracts delivered, issued, amended or renewed on and after July 1, 2011 (H. 2160, L. 2009, enacted April 19, 2010, effective July 1, 2010, at KS ¶17-4000).

In addition, Kansas has revised its law governing genetic discrimination in health insurance to prohibit charging higher premiums as a condition of enrollment and adjusting premiums or contribution amounts based on genetic information (H. 2501, L. 2009, enacted April 15, 2010, and effective July 1, 2010, at KS ¶17-4000).

Overtime Pay Law

An exception to maximum hour and overtime requirements that applies to certain emergency medical services workers has been amended to provide that an employer would not be in violation of the law with respect to the employment of an employee engaged in the public or private delivery of emergency medical services as “an attendant” (a first responder, an emergency medical responder, emergency medical technician, emergency medical technician-intermediate, emergency medical technician-defibrillator, emergency medical technician-intermediate/defibrillator, advanced emergency medical technician, mobile intensive care technician or certified paramedic), when such employee is paid at not less than one and one-half times the employee’s regular rate at which the employee is employed: (1) in any work period of 28 consecutive days in which the employee works for tours of duty which in the aggregate exceed 258 hours; or (2) in the case of any such employee to whom a work period of at least seven but less than 28 days applies, in any such work period in which such employee works for tours of duty which in the aggregate exceed a number of hours which bears the same ratio to the number of consecutive days in such work period as 258 hours bears to 28 days (S. 262, L. 2009, enacted April 19, 2010, and effective and in force from and after January 15, 2011, and publication in the state statute book, at KS ¶17-1100).

Unemployment Insurance Law

Contribution rate information has been updated (KS ¶17-1700).

Violence in the Workplace Law

The state has enacted a law providing that a person shall be justified in the use of force against another in order to prevent or terminate unlawful entry or attack upon such person's place of work (S. 381, L. 2009, enacted April 19, 2010, effective from and after publication in the Kansas register, at KS ¶17-3300).

Health Insurance Benefit Coverage Law

A health benefit plan shall not exclude coverage for routine patient healthcare costs that are incurred in the course of a cancer clinical trial if the health benefit plan would provide coverage for the routine patient healthcare costs had they not been incurred in a cancer clinical trial (Ch. 23 (S. 18), L. 2010, enacted March 24, 2010, at KY ¶18-4000).

Child Labor Law

Maine has amended its child labor law to prohibit the employment of minors in medical marijuana dispensaries (Ch. 631 (S. 719), L. 2010, enacted April 9, 2010, at ME ¶20-1500).

COBRA Law

Maine's mini-COBRA law has been revised to make persons permanently laid off from their employment eligible to maintain, at their expense, coverage under their former employer's group health plan. Currently, the law limits eligibility to persons who are temporarily laid off or who have a condition that makes them eligible for workers' compensation (P.L. 574 (H. 1209), L. 2009, enacted March 31, 2010, at ME ¶20-4200).

Additionally, the state has extended access to federal health insurance premium assistance for laid-off employees (Ch. 39 (H. 1259), L. 2009, enacted and effective March 26, 2010, at ME ¶20-4200).

Disability Law

A person whose conduct is authorized under the Maine Medical Use of Marijuana Act may not be denied any right or privilege or be subjected to any penalty or disciplinary action for lawfully engaging in conduct involving the medical use of marijuana authorized under this law. Under Ch. 631 (S. 719), L. 2009, enacted April 9, 2010, employers may not refuse to employ or otherwise discriminate against a person solely for that person’s status as a registered medical marijuana patient or primary caregiver, unless failing to do so would put the employer in violation of federal law or cause it to lose a federal contract or funding. Existing law provides that employers do not have to accommodate the ingestion of marijuana in any workplace or any employee working while under the influence of marijuana (ME ¶20-2600).

Minimum Wage Law

The Executive Director of the Workers' Compensation Board is authorized to issue a stop-work order if a hiring agent or construction subcontractor has knowingly misrepresented one or more employees as independent contractors, knowingly failed to provide a workers' comp insurance policy or knowingly provided false, incomplete or misleading information concerning employees (H. 1102, L. 2009, enacted April 13, 2010, at ME ¶20-1000).

Unemployment Insurance Law

Contribution rates in Maine for 2010 have been adjusted by 0.06% for the Competitive Skills Scholarship Fund (CSSF) rate that is now in effect. As adjusted, rates for 2010 range from 0.78% to 7.19%, as determined under Schedule E. New employers pay 2.73% for 2010 (ME ¶20-1700).

Workers’ Compensation Law

The state has enacted a law authorizing the Executive Director of the Workers' Compensation Board to issue a stop-work order if a hiring agent or a construction subcontractor has knowingly failed to secure the payment of workers’ compensation (Ch. 649 (H. 1102), L. 2009, enacted April 13, 2010, at ME ¶20-4300).

Unemployment Insurance Law

For calendar year 2010, rates are determined under Table F, and range from 2.2% to 13.5%. New employers pay 2.3% for 2010, except that new construction employers headquartered in another state pay 9.4% (MD ¶21-1700).

Wage Payment Law

The Maryland Wage Payment and Collection Law has been amended to clarify that the definition of “wage” includes overtime wages (Ch. 99 (S. 694) and Ch. 100 (H. 214), L. 2010, enacted April 13, 2010, and effective October 1, 2010, at MD ¶21-1200).

The law has also been amended to provide administrative procedures for handling complaints filed with the Commissioner of Labor and Industry for failure to pay wages that do not exceed $3,000, and to authorize the Commissioner to order employers to pay wages plus interest, at the rate of five percent per year accruing from the date wages are owed, under certain circumstances (Ch. 150 (H. 404), L. 2010, enacted April 13, 2010, and effective October 1, 2010, at MD ¶21-1200).

Employees laid off shortly before 30 year mark not eligible for age bias claim

Employees who were laid off shortly before they would have been eligible for a full pension based on 30 years of service, and instead were granted reduced benefits based on 25 years of service, could not assert age bias claims based on the employer’s having amended the plan to accelerate benefits eligibility for other laid-off workers; age was a factor in the benefits awarded because the plan included age as a consideration in defining early retirement benefits, which is permissible under the ADEA, and the difference in the retirement benefit was based on pension status and not motivated by age, Schultz v Windstream Communications, Inc, 8thCir, 93 EPD ¶43,857.

Minimum Wage Law

The Employee Classification Act was enacted in Nebraska on April 13, 2010, to clarify when a person working on a construction or delivery service contract is an “employee” and not an “independent contractor” (L.B. 563, L. 2009, effective July 15, 2010, at NE ¶28-1000).

Workers' Compensation Law

The state's workers' comp law has been amended to change certain notice requirements (L.B. 829, L. 2009, enacted and effective April 12, 2010, at NE ¶28-4300).

Minimum Wage Law

The minimum wage rate in Nevada will increase on July 1, 2010. Employers who offer qualifying health benefits will be required to pay employees a minimum wage rate of at least $7.25 per hour. Those employers who do not offer qualifying health benefits will be required to pay employees a minimum wage rate of at least $8.25 per hour. These rates apply to all employees in the state of Nevada unless otherwise exempt (NV ¶29-1000).

Overtime Pay Law

Effective July 1, 2010, daily overtime may apply if an employee is paid less than $10.875 per hour and the employer offers qualifying health benefits, or if an employee is paid less than $12.375 per hour and the employer does not offer qualifying health benefits (NV ¶29-1100).

Minimum Wage Law

The New York City Living Wage Law schedule of rates has been updated (NY ¶33-1000).

Recordkeeping/Posters Law

The New York City living wage poster has been updated, and the New York City Construction Worker Prevailing Wage Poster has been added (NY ¶33-9900).

Senate passes landmark legislation to halt workplace bullying and abuse

New York State Senator Thomas P. Morahan, Chairman of the Committee on Mental Health and Developmental Disabilities today secured Senate passage of his landmark legislation (S.1823-B) which establishes a civil cause of action for employees who are subjected to an abusive work environment. Specifically, this legislation provides legal redress for employees who have been harmed psychologically, physically or economically by being deliberately subjected to abusive work environments. It also provides legal incentives for employers to prevent and respond to mistreatment of employees at work. Surveys and studies demonstrate that 16 to 21 percent of employees experience health-endangering workplace bullying, abuse and harassment, and that this behavior is four times more prevalent then sexual harassment. These studies have also documented serious mental and physical effects on these targeted employees (IWS Documented News Service, May 12, 2010).

Health Insurance Benefit Coverage Law

Effective for policies, contracts and agreements delivered, issued for delivery or renewed on or after July 1, 2010, unmarried dependent children who are Ohio residents or full-time students may remain on their parent's insurance until age 28. Unmarried dependent children may remain on their parent's insurance without regard to age if they are incapable of self-sustaining employment due to disability (Ch. 9 (H. 1), L. 2009, enacted July 17, 2009, at OH ¶36-4000).

Civil Rights Act

Oklahoma has amended its Civil Rights Act by adding the following definition to Title 25, Chapter 21, Article 3 (Employment Discrimination) of the state statutes: “Sex,” “because of sex,” or “based on sex,” includes, but is not limited to, pregnancy, childbirth or related medical conditions; women affected by pregnancy, childbirth or related medical conditions shall be treated the same for all employment-related purposes as other persons not so affected but similar in their ability or inability to work. Title 25, Chapter 21, Article 3, Section 1301, as amended by S.B. 1814, L. 2009, effective November 1, 2010. Para 37-20,027.01.

Fair Employment Practices Law

Oklahoma has amended its Civil Rights Act by adding the following definition: “Sex”, “because of sex” or “based on sex” includes, but is not limited to, pregnancy, childbirth or related medical conditions. Women affected by pregnancy, childbirth or related medical conditions shall be treated the same for all employment-related purposes as other persons not so affected but similar in their ability or inability to work (S. 1814, L. 2009, enacted April 12, 2010, effective November 1, 2010, at OK ¶37-2500).

Preemployment Inquiries Law

The Tenth Circuit on April 19, 2010, refused to rehear a decision enjoining the enforcement of employment-related provisions in the state of Oklahoma’s comprehensive Taxpayer and Citizen Protection Act of 2007 (H. 1804) (Chamber of Commerce of the USA v Edmondson, Nos 08-0627 and 08-6128, petition for rehearing en banc denied April 19, 2010). Last month, the state petitioned for rehearing en banc, claiming that rehearing was warranted because the panel decision conflicted with both the decisions of the Tenth Circuit and the US Supreme Court. “Rehearing is … warranted as the proceeding involves one or more questions of exceptional importance,” wrote the state, including questions of conflict, and express and implied preemption by the Oklahoma law and the Immigration Reform and Control Act, among other federal laws.

“We are disappointed in the circuit court’s decision,” said Charlie Price, a spokesperson for the Oklahoma attorney general’s office in an April 20, 2010, interview with CCH. Price said the attorney general’s office is considering its legal options, including a possible appeal to the US Supreme Court.

In February 2010, a three-judge panel affirmed a trial court’s preliminary injunction barring enforcement of certain employment provisions in the Act. A provision that sought to create a new cause of action against Oklahoma employers that discharge US citizens or legal permanent resident employees while retaining undocumented workers was either expressly or impliedly preempted by federal immigration law. The panel also held federal law preempted the state’s requirement that all Oklahoma businesses obtain documents to verify the work eligibility of their independent contractors or withhold certain taxes from them. However, the court panel split on the legality of the Act’s mandate that all public contractors (and subcontractors) enroll in the federal government’s E-Verify program, reversing the district court’s grant of a preliminary injunction; that part of the law was upheld.

The case now goes back to the trial court to decide whether the court will make its preliminary injunction permanent. Price was unsure when US District Court Judge Robin J. Cauthron of the Western District Court of Oklahoma would take up that issue.

“Today’s decision means the initial ruling of the three-judge panel will stand,” said Rep. Randy Terrill (R-Moore), author of the Act, in an April 19 statement. “That means the injunction on the mandatory use of E-verify, which is the most important private-employment provision in House Bill 1804, has been lifted. That remains great news. The other two, less-important private-employment provisions relating to wrongful discharge and tax withholding, remain enjoined. What the Tenth Circuit appears to be signaling is that they are reluctant to issue an en banc ruling in an appeal of a temporary injunction until the district court has made some decision with regard to a permanent injunction.”

“When further legal arguments are made in this case, I will file another amicus brief on behalf of myself and all other legislators who support this law,” said Terrill (OK ¶37-9000).

Religious Discrimination Law

Oklahoma's Freedom of Conscience Act prohibits employers from discriminating against an employee or prospective employee by refusing to reasonably accommodate the religious observance or practice of the employee or prospective employee, unless the employer can demonstrate that the accommodation would pose an undue hardship on the program, enterprise, or business of the employer, in the following circumstances: (1) An abortion, unless the pregnant woman suffers from a physical disorder, physical injury, or physical illness which, as certified by a physician, causes the woman to be in imminent danger of death unless an abortion is immediately performed or induced and there are no other competent personnel available to attend to the woman. (2) An experiment or medical procedure that destroys an in vitro human embryo or uses cells or tissue derived from the destruction of an in vitro human embryo; (3) An experiment or medical procedure on an in vitro human embryo that is not related to the beneficial treatment of the in vitro human embryo; (4) An experiment or medical procedure on a developing child in an artificial womb, at any stage of development, that is not related to the beneficial treatment of the developing child; (5) A procedure that uses fetal tissue or organs that come from a source other than a stillbirth or miscarriage; or (6) An act that intentionally causes or assists in causing the death of an individual by assisted suicide, euthanasia, or mercy killing.

Additional provisions of the law relate to health care facilities and schools (S. 1891, L. 2009, enacted and effective April 2, 2010, at OK ¶37-2900).

Workers’ Compensation Law

Effective November 1, 2010, the spouse of any employer who is exempt from the workers' comp law shall also be exempt (H. 3169, L. 2009, enacted April 12, 2010, at OK ¶37-4300).

Disability Law

An employer was not required, under Oregon’s employment discrimination law, to accommodate an employee’s use of medical marijuana, an en banc Oregon Supreme Court held in a 5-2 decision (Emerald Steel Fabricators, Inc v Bureau of Labor & Indus, April 14, 2010, Kistler, R). The Oregon Medical Marijuana Act (ORS 475.306(1)) authorizes individuals holding a registry identification card to use marijuana for medical purposes. This statute directs the state to issue registry identification cards to individuals when a physician states that “the person has been diagnosed with a debilitating medical condition and that the medical use of marijuana may mitigate the symptoms or effects” of that condition. The Federal Controlled Substances Act (21 USC Sec. 801 et seq.), however, prohibits the manufacture, distribution, dispensation and possession of marijuana even when state law authorizes its use to treat medical conditions.

Prior to being hired by a steel products manufacturer, a temporary employee obtained a registry identification card to treat various conditions (anxiety, panic attacks, nausea, vomiting, and severe stomach cramps) that substantially limited his ability to eat. His work was satisfactory, and the employer informed him it was considering hiring him on a permanent basis. Knowing that he would have to pass a drug test as a condition of permanent employment, the employee told his supervisor that he had a registry identification card and that he used marijuana for a medical problem; he also showed his supervisor documentation from his physician. One week later, the supervisor discharged the employee. After investigating the employee’ complaint, the Oregon Bureau of Labor and Industries filed charges against the employer alleging that it fired the employee due to his disability and failed to accommodate his disability in violation of Oregon’s employment discrimination law. An administrative law judge ruled that the employer violated state law by failing to accommodate the employee. On appeal, the employer argued that because marijuana possession is unlawful under federal law, even when used for medical purposes, state law does not require an employer to accommodate an employee’s use of marijuana to treat a disabling medical condition. The state court of appeals declined to reach that question, reasoning that the employer had not preserved it. The state supreme court reversed, holding that the employer had preserved the question.

The state supreme court reversed, holding that the employer had preserved the question and that Oregon law did not require the employer to accommodate the employee’s medical use of marijuana. To the extent that ORS 475.306(1) authorizes the use of medical marijuana, the Federal Controlled Substances Act preempts that subsection. The state high court noted, however, that its ruling was limited to ORS 475.306(1) and, thus, the court did not hold that the Federal Controlled Substances Act preempts Oregon Medical Marijuana Act provisions that exempt the possession, manufacture, or distribution of medical marijuana from state criminal liability. The court further held that because the employee was currently engaged in the illegal use of drugs and the employer discharged him for that reason, the protections of the state employment discrimination statute (ORS 659A.112), including the obligation to engage in a meaningful interactive discussion, did not apply (OR ¶38-2600).

Fair Employment Practices Law

Oregon Governor Ted Kulongoski (D) has signed into law a bill (H. 3686) repealing a 1923 law prohibiting public school teachers in the state from wearing religious dress while engaged in the performance of their duties as teachers. In an April 1, 2010, letter to Secretary of State Kate Brown, the governor voiced his concern that school districts may interpret and apply the law differently. Under H. 3686, which amends the Oregon Workplace Religious Freedom Act, school districts are obligated to maintain a religiously neutral work environment with factors for determining whether reasonable accommodations require significant difficulty or expense. “There is a grey area at the intersection of the teacher’s right to practice his or her religion and the students’ right to be taught in a religiously neutral environment,” he said. Accordingly, the Bureau of Labor and Industries and Superintendent Susan Castillo of the Oregon Department of Education, in consultation with the interested parties, will develop and implement guidelines for the uniform application of the law, said Kulongoski. The law will take effect July 1, 2011 (H. 3686, L. 2009, enacted April 1, 2010, at OR ¶38-2500).

In other Oregon news, a new law has been enacted that will make it an unlawful employment practice to obtain or use for employment purposes information contained in the credit history of an applicant for employment or an employee, or to refuse to hire, discharge, demote, suspend, retaliate or otherwise discriminate against an applicant or an employee with regard to promotion, compensation, or the terms, conditions or privileges of employment based on information in the job applicant or employee’s credit history. Senate Bill 1045, signed by Governor Ted Kulongoski on March 29, 2010, also provides exceptions for financial institutions, public safety offices, and other employment if credit history is job-related and such use is disclosed to the applicant or employee. Aggrieved employees and job applicants may file a complaint with the Commissioner of the Bureau of Labor or file a civil action for relief (Governor Ted Kulongoski Press Release, March 29, 2010; Ch. 102 (S. 1045), L. 2009, enacted March 29, 2010, and operative July 1, 2010, at OR ¶38-2500).

Recordkeeping/Posters Law

South Carolina now requires employers to post in a conspicuous place a printed notice stating the provisions of the state's law relative to the employment of adult persons and children and the regulation of hours and working conditions. The requirement that the notice be posted in every room where five or more persons were employed has been repealed (Act 137 (S. 929), L. 2009, enacted and effective March 31, 2010, at SC ¶42-9900).

Disability Law

Tennessee now specifically allows service animals in barber shops (Ch. 704 (H. 2823), L. 2009, enacted and effective March 31, 2010, at TN ¶44-2600).

Health Insurance Benefit Coverage Law

Tennessee has added licensed marital and family therapists and licensed professional counselors to its law regarding reimbursement for services provided by optometrists, psychologists, podiatrists and social workers (Ch. 726 (S. 3579), L. 2009, enacted and effective April 9, 2010, at TN ¶44-4000).

Preemployment Inquiries Law

Utah Governor Gary R. Herbert has signed Senate Bill 251, “Verification of Employment Eligibility,” after receiving a commitment from the bill's sponsor that he will work to amend the bill to further clarify its intent. S.B. 251 is designed to encourage private employers to participate in the federal E-Verify system. Under an agreement negotiated by Governor Herbert, Senator Chris Buttars, sponsor of the bill, will seek to amend the bill prior to its July 1 implementation date to ensure that participation is truly voluntary (Utah Governor Gary R. Herbert, Press Release, March 31, 2010).

“This bill achieves some very important goals, such as protecting young Utahns against identity theft,” Governor Herbert said. “My intent is simply to clarify that Utah's businesses are not mandated to participate in the E-Verify program.”

The Governor met with many parties during his review and analysis of S.B. 251, including representatives from Utah's minority communities.

“This is a difficult issue to address on all sides,” said Juan Manuel Ruiz, president of the Latin-American Chamber of Commerce. “We appreciate Governor Herbert listening to the minority business community in the discussions concerning this bill and working with the Legislature to ensure that participation in E-Verify is voluntary rather than mandated.”

Lane Beattie, President of the Salt Lake Chamber, also thanked the Governor and Sen. Buttars for their efforts to improve S.B. 251. “This issue was of particular concern to the business community,” Beattie said. The inclusion of the word ‘voluntary’ would alleviate the fears of small business owners and allow dialogue on this important issue to continue.”

The introduction of S.B. 251 and ensuing debate has opened the door to conversations on the larger discussion of immigration policy and reform. Governor Herbert hopes that clarifying the legislation and eliminating possible misperceptions about its intent will allow for future progress.

Employment of Aliens Law

Virginia Governor Bob McDonnell signed into law H.B. 737, L. 2010, on April 11 requiring state agencies to enroll in the federal government’s E-Verify program by December 1, 2012, and to use the program for each newly hired employee who is to perform work within the Commonwealth. The law takes effect July 1, 2010. Only a couple of weeks earlier, Utah Governor Gary Herbert (R) signed into law a bill (S.B. 251) requiring employers to verify the legal status of new employees; he did so only after receiving a commitment from its sponsor, Sen. Chris Buttars (R), that he will work to amend the law to further clarify its intent. Title 40.1, Chapter 1, Section 40.1-11.2, as enacted by H.B. 737, L. 2010, effective July 1, 2010. Para 49-24,050.22.

Health Insurance Benefit Coverage Law

While Virginia Governor Bob McDonnell ceremonially signed the House version of the state's Health Care Freedom Act back on March 24, 2010, the bill officially became law on April 21, 2010, after the House and Senate accepted amendments based on previously enacted Senate bills. Under the law, Virginia residents cannot be required to obtain or maintain a policy of individual insurance coverage, regardless of whether an individual has (or is eligible for) health insurance coverage through an employer or a plan sponsored by the state or federal government. Accordingly, residents may not be held liable for a penalty for failure to procure or obtain health insurance coverage (H. 10, L. 2010, enacted April 21, 2010, and effective August 1, 2010, at VA ¶48-4000).

In addition, Virginia has revised the standard reference compendia used in its law prohibiting insurance benefit denials for certain prescription drugs. Compendia now include: (1) American Hospital Formulary Service - Drug Information, (2) National Comprehensive Cancer Network’s Drugs & Biologics Compendium, and (3) Elsevier Gold Standard’s Clinical Pharmacology (Ch. 43 (H. 1375), L. 2010, enacted April 11, 2010, at VA ¶48-4000).

Military and Emergency Services Leave Law

The state has extended the period in which a member of the State National Guard, State Defense Force, or naval militia is required to apply for reinstatement in his or her former job to a specified number of days following his or her release from duty or from hospitalization following release, if the length of the member's absence by reason of service in the uniformed services exceeds a specified number of days (Ch. 253 (S. 349), L. 2009, enacted April 8, 2010, at VA ¶48-7200).

Workers’ Compensation Law

Workers' compensation insurance carriers are authorized to file proof of coverage for an employer within 30 days of an insurance policy's inception. In such cases, the filing shall be made electronically in the form prescribed by, and to the agent designated by, the Workers' Compensation Commission (Ch. 376 (S. 597), L. 2010, at VA ¶48-4300).

Smoking in the Workplace Law

West Virginia has enacted a law providing that any employer who discovers that his or her employee has sold or furnished tobacco products to minors may dismiss such employee for cause and that any such discharge shall be considered as gross misconduct for the purposes of determining the discharged employee's eligibility for unemployment benefits, if the employer has provided prior written notice in the workplace that such act may result in termination (H. 2773, L. 2010, passed March 13, 2010; in effect 90 days from passage, at WV ¶50-2700).

Unemployment Insurance Law

A firm that failed to show that its consultants individually met the state’s three-pronged test for independent contractor status was subject to unemployment tax liability under the Wyoming Employment Security law, although the full extent of its liability was yet to be determined (Wyoming Dep’t of Employment v Jolley, April 22, 2010, Voight, CJ). Sierra Engineering contracted with consultants to perform work requested by clients. A hearing over whether Sierra owed unemployment taxes for the work turned on whether the consultant’s employees were independent contractors or whether they were Sierra’s employees. Largely adopting the findings of a hearing officer, the Commission found that Sierra did not direct and control every detail of the consultants’ work, but did control their work to a significant extent; the other two prongs of the test were whether the individuals represented their services to the public as self-employed or independent contractors and whether they might substitute another individual to perform their services. A reviewing court reversed, but the state supreme court affirmed the Commission. Sierra argued that, under the Wyoming three-part test for independent contractors, the company merely had to show that the relevant workers constituted a class in order to shift the burden of proving that each was an employee to the Commission. The supreme court rejected this contention, holding that Wyoming law requires the employer to show that each worker met the definition of independent contractor. There were at least eight consultants who were undisputedly paid wages by Sierra for services performed during the relevant period and for whom there was no evidence to support a finding that they were independent contractors. Finding that at least some of the consultants were Sierra employees, the supreme court remanded the case, pending a state audit to determine which of the consultants were in fact Sierra employees (WY ¶52-1700).