State Law Changes

November 17, 2010 Update

No Updates as of November 17, 2010

Fair Employment Practices Law

A 53-year-old African-American employee's state law claims of race, age, and disability discrimination, as well as his claim for breach of covenant of good faith and fair dealing, were properly disposed of on summary judgment, the Alaska Supreme Court held (Smith v Anchorage School District, October 8, 2010, Stowers, C, at AK ¶2-2500).

Minimum Wage Law

Arizona voters enacted the Raise the Minimum Wage for Working Arizonans Act in 2006. The voter initiative established an Arizona minimum wage and provided for an annual increase based on the increase in the cost of living. The cost of living is based on the federal Consumer Price Index for All Urban Consumers, U.S. City Average, for all items during the 12 months ending each August 31 (CPI-U). The CPI-U is a national index covering the cost of goods and services. The CPI-U increased 1.1% percent comparing August 2010 to August 2009. At a public meeting held on October 14, 2010, the Industrial Commission of Arizona determined that Arizona's minimum wage of $7.25 per hour would be increased by $0.10 to $7.35 for calendar year 2011. Arizona's minimum wage of $7.35 per hour will be higher than the federal minimum wage of $7.25 through 2011 (Industrial Commission of Arizona Press Release, October 14, 2010, at AZ ¶3-1000).

Recordkeeping/Posters Law

Arizona has updated its minimum wage posters (AZ ¶3-9900).

Preferential Treatment and Discrimination in State Employment, Education and Contracting

In the November 2 election, Arizona voters, by a margin of 59.55% to 40.45%, approved a ballot initiative to amend the state's constitution to prohibit state universities, the state, and all other state entities (including cities, towns and counties) from discriminating against or granting preferential treatment based on race, sex, color, ethnicity or national origin “in the operation of public employment, public education, or public contracting”. The measure allows exceptions to the prohibition when “bona fide qualifications based on sex” are “reasonably necessary” or when necessary to establish or maintain eligibility for any federal funding. In addition, it exempts court orders or consent decrees in force when the measure becomes effective. The passage of the ballot initiative is expected to impact the use of affirmative action in a number of areas, including employment, education and government contracting.

Arizona is the fifth state to approve such a measure. The 2010 Arizona ballot initiative is similar to initiatives that have been passed in California (1996), Washington state (1998), Michigan (2006) and Nebraska (2008). However, Colorado became the first state to reject, by an extremely narrow margin (50.7% to 49.2%), an anti-affirmative action ballot measure in the November 2008 election. While the California, Washington, Michigan, Nebraska and Colorado ballot initiatives were launched through signature-gathering campaigns, Arizona is the first state to put such a measure on the ballot via legislative action. The Arizona Senate approved putting the measure on the ballot in a 17-11 vote on June 22, 2009 (H. Con. Res. 2019) and the House approved the measure on June 18, 2009 in a 32-18 vote. The proposal did not require the governor’s signature to be on the ballot.

Similar anti-affirmative action measures were proposed, but did not qualify, to be on the November 4, 2008, ballot in Oklahoma, Missouri and Arizona because supporters of those measures failed to get enough valid signatures by the respective deadlines. Arizona Constitution, Article II, Section 36, as added by Prop 107, HCR 2019, 2009, approved Nov. 2, 2010. Para 3-21,600.01.

Criminal Background Checks Law

The state has enacted a law requiring a person 18 years of age or older who provides child care or child care supervision in an ancillary day care center be registered as a trustline provider. The new law specifies that a person is ineligible for employment in a position providing child care or child care supervision in an ancillary day care center if that person is denied trustline registration or has his or her trustline registration revoked. Health and Safety Code, Division 2, Chapter 3.35, Section 1596.656, as amended by Ch. 431 (A. 222), L. 2009, effective Jan. 1, 2011. Para 5-23,601.28.

A new law effective January 1, 2012, will require a person who procures or causes to be prepared an investigative consumer report for employment purposes to provide a consumer with the Internet website address or telephone number for the investigative consumer reporting agency where the consumer may find information about the agency's privacy practices. The law will also require such agency to post such practices on its primary website regarding its investigative practices. Civil Code, Division 3, Part 4, Title 1.6A, Article 1, Sections 1786.16 and 1786.20, as amended by Ch. 481 (S. 909), L. 2009, effective Jan. 1, 2011. Paras 5-23,604.28 and 5-23,604.30. Note: Clause (a)(2)(B)(iv) of Section 1786.16 is effective Jan. 1, 2012.

Health Insurance Benefit Coverage Law

As required under the federal Patient Protection and Affordable Care Act (PPACA), as amended, the state has established the “California Health Benefit Exchange” to facilitate the purchase of health plans by qualified individuals and small employers by January 1, 2014. The Exchange, an independent public entity, will be governed by an executive board (Ch. 659 (S. 900) L. 2009, enacted September 30, 2010, effective January 1, 2011, at CA ¶5-4000).

Among its many duties, the Board of the Exchange will furnish the US Treasury with a list of individuals who were employed, but eligible for a premium tax credit, because: (1) the employer did not provide minimum essential coverage; or (2) the employer provided such coverage, but it was determined to be unaffordable for the employee or not of the required minimum actuarial value. It also will provide employers with the names of such employees who end coverage under a qualified health plan during the plan year and the effective date of that cessation. Additionally, the Board will establish a “Small Business Health Options Program” to help small employers enroll their employees in qualified health plans offered through the Exchange (Ch. 655 (A. 1602), L. 2009, enacted September 30, 2010, effective January 1, 2011, at CA ¶5-4000).

Health insurers participating in the Exchange must offer, market and sell in the Exchange at least one product within each of five levels of coverage (bronze, silver, gold, platinum or catastrophic coverage for young adults), as provided under federal law. Those selling outside the Exchange must offer, market and sell all products made available to individuals and small businesses in the Exchange to those purchasing outside the Exchange. For policies covering hospital, medical or surgical benefits, beginning January 1, 2014, health insurers may only sell the five coverage levels above; those not participating in the Exchange may only sell four levels -- bronze, silver, gold and platinum. These requirements also apply to health care service plans (Ch. 655 (A. 1602), L. 2009, enacted September 30, 2010, effective January 1, 2011, at CA ¶5-4000).

Adult children may remain on their parents’ health care policies and plans until age 26, under a recent amendment to California’s health insurance laws. No later than the first day of the first policy year beginning on or after September 23, 2010, health insurers and health care service plans must provide written notice and give affected children an enrollment opportunity lasting at least 30 days. As under federal law, an exception applies to grandfathered health plans -- for policy years beginning before January 1, 2014, they may exclude a child under age 26 if the child can enroll in an eligible employer-sponsored health plan other than the parent’s plan or policy (Ch. 660 (S. 1088), L. 2009, enacted September 30, 2010, effective January 1, 2011, at CA ¶5-4000).

Group health insurance policies and group health care service plans must comply with Sec. 2713 of the federal Public Health Service Act (PHSA) and related regulations, under another recently enacted law in California. PHSA Sec. 2713 requires health insurance issuers to cover, and not impose cost-sharing for, specified preventive services (Ch. 657 (A. 2345), L. 2009, enacted September 30, 2010, effective January 1, 2011, at CA ¶5-4000).

Finally, California law was amended to prohibit health benefit plans and plan contracts for group coverage from imposing preexisting condition exclusions on children under the age of 19 (Ch. 656 (A. 2244), L. 2009, enacted September 30, 2010, effective January 1, 2011, at CA ¶5-4000).

Holiday and Vacation Law

Existing California law recognizes various holidays, including November 11, known as Veterans Day. Existing law requires that public offices of the state and state institutions, except for the University of California, be closed on Veterans Day. A new law (Ch. 511 (S. 1057), L. 2009, enacted September 29, 2010)) will require that public offices of the state and state institutions, including, but not limited to, all state agencies and the Legislature, be closed on November 11 for Veterans Day, except as specified. The law also states the Legislature's intent that the University of California also be closed on November 11, Veterans Day (CA ¶5-7400).

Minimum Wage Law

Effective January 1, 2011, San Francisco’s for-profit minimum compensation rate for contracts entered into or amended on or after October 14, 2007, will be $11.69 per hour. Also, effective January 1, 2011, the city’s minimum wage rate will be $9.92 per hour (currently, $9.79 per hour) (CA ¶5-1000).

Preemployment Inquiries Law

The state has enacted a law requiring a person 18 years of age or older who provides child care or child care supervision in an ancillary day care center be registered as a trustline provider. The new law specifies that a person is ineligible for employment in a position providing child care or child care supervision in an ancillary day care center if that person is denied trustline registration or has his or her trustline registration revoked (Ch. 431 (A. 222), L. 2009, enacted September 29, 2010, at CA ¶5-9000).

A new law effective January 1, 2012, will require a person who procures or causes to be prepared an investigative consumer report for employment purposes to provide a consumer with the Internet website address or telephone number for the investigative consumer reporting agency where the consumer may find information about the agency's privacy practices. The law will also require such agency to post such practices on its primary website regarding its investigative practices (Ch. 481 (S. 909), L. 2009, enacted September 29, 2010, at CA ¶5-9000).

Discrimination in Public Employment Rule

After further review by Office of Human Rights, a number of substantial alterations were made with respect to EEO Counselors' responsibilities, EEO Officers' responsibilities, responsibilities of agency heads, and authority of hearing examiners. Minor alterations were also made to clarify the intent, meaning, or application of the proposed rules. Title 4, Chapter 1, Section 100 through 199, as amended effective Oct. 1, 2010. Paras 9-20,75.001 through 9-20,075.99.

Minimum Wage Law

On January 1, 2011, the minimum wage in Florida will remain unchanged at the federal rate of $7.25 per hour. The current federal minimum wage went into effect July 24, 2009. Federal law requires that employers pay the higher of the federal or state minimum wage. The federal minimum wage will prevail over the state rate until such time as the Florida minimum wage becomes higher than the federal rate.

Florida law requires the Agency for Workforce Innovation to calculate an adjusted minimum wage rate each year and to publish the minimum wage in Florida on October 15 (FL ¶10-1000).

Recordkeeping/Posters Law

Florida has updated its minimum wage posters (FL ¶10-9900).

Human Rights Commission Rules of Practice and Procedure

The Human Right Commission's procedural provisions were amended to reflect the changes incorporated into the Illinois Human Rights Act, effective January 1, 2008. The amendments reflect that the Human Rights Commission now has statutory authority to hear and determine requests for review of the Department of Human Rights' decisions to dismiss a charge or issue a notice of default. Title 56, Chapter XI, Part 5300, Sections 5300.10, 5300.210, 5300.330, 5300.400, 5300.410, 5300.440, 5300.450, 5300.720, 5300.730, 5300.735, and 5300, 835, as amended effective Oct. 5, 2010. Paras 14-20,125.01 through 14-20,125.04, 14-20,125.07, and 14-20,125.08.

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Recordkeeping/Posters Law

The English version of the state’s living wage poster has been updated (MD ¶21-9900).

Criminal Background Checks Law

The Department of State Police’s right to charge fees for specified criminal record checks has been extended to October 1, 2012. A fee shall not be collected if a fee for taking and processing fingerprints is collected under any other law. In addition, the fee shall not exceed the actual cost of taking and processing the impression of the fingerprints and completing a criminal record check on that person. Chapter 28, Section 28.273, as amended by Act 178 (S. 1035), L. 2009, effective Sept. 30, 2010. Para 23-23,601.23.

Preemployment Inquiries Law

The Department of State Police’s right to charge fees for specified criminal record checks has been extended to October 1, 2012 (Act 178 (S. 1035), L. 2009, enacted September 30, 2010, at MI ¶23-9000).

Recordkeeping/Posters Law

The English version of the St. Louis living wage poster has been updated, and the Spanish version has been added (MO ¶26-9900).

NebSCt: Citing lack of specificity, state high court refuses certified question about city ordinance banning hiring of illegal immigrants

Finding that a federal district court’s request to certify a question involving a Nebraska city ordinance banning the hiring of illegal immigrants did not identify any state constitutional provision unique to Nebraska, the state’s highest court declined the certification request (Keller v City of Fremont, November 5, 2010, per curiam). Concurring separately, Justice Miller-Lerman wrote that the request lacked specificity regarding the nature of the challenge in the case, and thus, the question did not direct the court to the specific state law at issue. The federal district court’s certification request involved two consolidated federal cases challenging a Fremont, Nebraska, ordinance (Fremont Ordinance 5156), which bars the hiring of, harboring of, or renting to illegal immigrants. The request asked the Nebraska Supreme Court to determine if a Nebraska city of the first class could promulgate an ordinance that places conditions on residential property rentals or business hiring and employment decisions, consistent with chapters 16, 18, and 19 of the Nebraska Revised Statutes.

Observing that the certification request did not specify the challenge to the ordinance on state law grounds, nor did it identify any state statutes or constitutional provisions that were allegedly violated, the Nebraska Supreme Court declined to accept the federal court’s certified question. Those omissions, the court noted, required it to make assumptions about the state law challenge and imply that it was a constitutional challenge. Because the request did not identify any state constitutional provision implicated by the controversy that was unique to Nebraska, the court assumed the state constitutional challenge coincided with federal constitutional provisions.

Unemployment Insurance Law

The current maximum weekly benefit amount in New Mexico is $380. The minimum weekly benefit amount is $71 (NM ¶32-1700).

Reprimands lead to age-related remarks

A 54-year-old discharged employee could proceed with her ADEA, New York and New York City law age bias claims; assuming the disputed facts alleged by the employee were true, her supervisor’s reprimands leading up to his age-related remarks “occurred under circumstances suggesting discriminatory motives,” and a reasonable juror could find these comments were not stray remarks, that the employer’s justifications were pretextual, and that the employee’s age was the “but for” cause for her termination. Hird-Moorhouse v Belgian Mission to the UN (SDNY 2010) 93 EPD ¶43,998

Preemployment Inquiries Law

State provisions that require school districts in the state to conduct criminal background checks on school employees and to discharge employees who are found to have been convicted of certain criminal offenses are constitutional, even as applied retroactively and to “non-licensed” school employees, a divided Ohio Supreme Court ruled, addressing a certified question of state law at the request of a federal district court (Doe v Ronan, October 26, 2010, Cupp, R). The background check provision, as newly applied to ”non-licensed” school employees, does not violate the Ohio Constitution’s proscription against retroactive laws, and neither the statute nor its corresponding regulatory code violates the constitutional provision barring application of a law in a way that impairs the obligation of a pre-existing contract, the majority concluded (OH ¶36-9000).

State law provisions requiring school districts to terminate “non-licensed” school employees for prior conviction upheld

State provisions that require school districts in the state to conduct criminal background checks on school employees and to discharge employees who are found to have been convicted of certain criminal offenses is constitutional, even as applied retroactively and to “non-licensed” school employees, a divided Ohio Supreme Court ruled, addressing a certified question of state law at the request of a federal district court (Doe v Ronan, October 26, 2010, Cupp, R). The background check provision, as newly applied to “non-licensed” school employees, does not violate the Ohio Constitution’s proscription against retroactive laws, and neither the statute nor its corresponding regulatory code violates the constitutional provision barring application of a law in a way that impairs the obligation of a pre-existing contract, the majority concluded.

Workers’ Compensation Law

Pennsylvania Governor Edward G. Rendell on October 13, 2010, signed into law House Bill 400, establishing the Construction Workplace Misclassification Act. The legislation provides criteria for classifying a person as an independent contractor as opposed to an employee in the construction industry. The law becomes effective in 120 days (February 21, 2011), but requires appropriation of funds for enforcement (Pennsylvania Office of the Governor Press Release, October 13, 2010).

House Bill 400 provides that for purposes of workers’ compensation, unemployment compensation and improper classification of employees, an individual who performs services in the construction industry for remuneration is an independent contractor only if: (a) the individual has a written contract to perform such services; (b) the individual is free from control or direction over performance of such services both under the contract and in fact; and (c) the individual is customarily engaged in an independently established trade, occupation, profession or business, for which certain specified criteria must be met (PA ¶39-4300).

Unemployment Insurance Law

For benefit years beginning on and after July 1, 2010, the maximum weekly benefit amount remains at $326, and the minimum amount remains at $20. Note, however, that these amounts could change at some point because of the reorganization that is currently going on with the South Carolina Department of Employment and Workforce (SC ¶42-1700).

Family, Medical and Parental Leaves Law

An employee of the state who has worked for 12 months or more and who has worked 1,250 hours is entitled to up to 12 weeks of sick leave, personal leave, vacation leave, leave without pay, or any combination of these leaves for a qualifying exigency arising out of the fact that the employee's spouse, son, daughter, or parent is on active duty or called to active duty status as a member of the National Guard or another reserve component of the armed forces of the United States in support of a contingency operation. Also, an employee is permitted up to 26 weeks for military caregiver leave to care for a spouse, son, daughter, parent, or next of kin of a covered servicemember with a serious injury or illness during a single 12-month period. A covered servicemember is anyone currently a member of the regular armed forces, a reserve component of the armed forces, or the National Guard (South Dakota Administrative Code, Title 55, Article 1, Chapter 22, Section 55:01:22:08.02, as amended effective October 18, 2010, at SD ¶43-7000).

Family Military Leave Rules-State Employment

An employee of the state who has worked for 12 months or more and who has worked 1,250 hours is entitled up to 12 weeks of sick leave, personal leave, vacation leave, leave without pay, or any combination of these leaves for a qualifying exigency arising out of the fact that the employee's spouse, son, daughter, or parent is on active duty or called to active duty status as a member of the National Guard or another reserve component of the armed forces of the United States in support of a contingency operation. Also, an employee is permitted up to 26 weeks for military caregiver leave to care for a spouse, son, daughter, parent, or next of kin of a covered servicemember with a serious injury or illness during a single 12-month period. A covered servicemember is anyone currently a member of the regular armed forces, a reserve component of the armed forces, or the National Guard Title 55, Article 1, Chapter 22, Section 55:01:22:08.02, as amended effective Oct. 18, 2010. Para 43-22,500.03.

Unemployment Insurance Law

Effective through December 31, 2010, Premium Rate Table 1 is in effect. Employers with a positive reserve ratio of 20% or more will receive a 0.50% premium rate. For the period between July 1, 2010, and June 30, 2011, new employers in the following NAICS industrial sectors will pay at the following (higher than the standard 2.7%) new employer rates: Mining and extraction-- 8.6%; Construction--8.1%; Manufacturing under NAICS category 31--5.6%; Manufacturing under NAICS category 32--6.6%; and Manufacturing under NAICS category 33--9.1% (TN ¶44-1700).

Workers’ Compensation Law

The widow of an employee who was the victim of an unsolved fatal shooting on an employer’s premises was not entitled to death benefits under Tennessee’s workers’ compensation law, the Tennessee Supreme Court decided in a 3-1 decision filed October 6. The trial court properly concluded that the employee’s death was the result of a neutral assault, and that the “street risk” doctrine was not applicable under the facts of the case (Padilla v Twin City Fire Ins. Co., TennSCt, No. M2008-02489-SC-WCM-WC, October 6, 2010, at TN ¶44-4300).

Minimum Wage Law

Effective January 1, 2011, the minimum wage in Vermont will increase to $8.15 per hour. The basic wage rate for service and tipped employees will increase to $3.95. The hour maximum tip credit allowed will be $4.20 an hour. A service or tipped employee means an employee of a hotel, motel, tourist place, or restaurant who customarily and regularly receives more than $120.00 a month in tips (Vermont Department of Labor Press Release, October 18, 2010, at VT ¶47-1000).

Recordkeeping/Posters Law

Vermont has updated its minimum wage law poster (VT ¶47-9900).

Unemployment Insurance Law

The minimum and maximum weekly benefit amounts for claims filed from July 6, 2008, to July 3, 2011, are $54 and $378, respectively. The minimum and maximum weekly benefit amounts for claims filed on and after July 3, 2011, are $60 and $378, respectively (VA ¶48-1700).

Minimum Wage Law

The minimum wage in Washington will increase to $8.67 per hour beginning January 1, 2011, according to the Department of Labor and Industries. The state's current minimum wage rate of $8.55 has remained unchanged since 2009 (Washington State Department of Labor and Industries News Release, October 15, 2010).

The Department calculates the state's minimum wage each year as required by Initiative 688, approved by Washington voters in 1998. The 12-cent increase reflects a 1.4% increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) since August 2009. The CPI-W is a national index covering the cost of goods and services needed for day-to-day living (WA ¶49-1000).

Recordkeeping/Posters Law

The state has updated its minimum wage poster (WA ¶49-9900).

No plain error in precluding employee in age discrimination case from introducing irrelevant evidence of coworker s termination and age discrimination lawsuit

A 52-year-old employee was properly prohibited from introducing evidence about her coworker’s termination and his subsequent age discrimination lawsuit, even though they were the only two workers discharged under a RIF, and they were discharged on the same day, the Supreme Court of West Virginia has held, affirming the trial court’s order denying the employee’s post-trial motion in her age discrimination suit (Wells v. Key Communications, L.L.C., October 28, 2010, per curiam).

The employee was hired as “office administrator” and was promoted a year later to “administrative manager” In both positions, the employee worked on the administrative/sales side of the business. Shortly thereafter, the employer decided it was necessary to eliminate one position in the administrative/sales department and one position in the technical/operations department because of financial difficulties. The employee was chosen to be terminated. A coworker, who was a field technician in the technical/operations department, was also terminated on the same day. The employee filed suit against the employer and its general manager, alleging that they discriminated against her based on her age by eliminating the position of administrative manager and terminating her employment. She also alleged that the employer retained a younger employee, who had poorer performance and abilities than she, and also claimed that she had higher performance ratings than the younger, more recently hired co-workers who were retained. Her coworker also filed suit based on age discrimination, asserting that he was terminated despite having a higher performance than younger, more recently hired coworkers. Despite the employer’s denial of his allegations, the suit was settled prior to trial. Upon motions in limine filed by the employee and the employer, the court ruled that, although the employee would be precluded from presenting evidence of alleged discrimination against her coworker, both parties would be permitted to present evidence regarding other employees who worked in the administrative/sales department under the general supervision of the managers who made the decision to terminate the employee. But evidence regarding employees who worked in the technical/operations department under the supervision of other managers would be excluded. After trial, a jury returned a verdict in favor of the defendants. Thereafter, the trial court entered an order denying the employee’s motion for a new trial, in which she argued that she should have been allowed to present evidence regarding her coworker’s termination. The employee appealed the order denying her post-trial motion.

Relying on the West Virginia Supreme Court’ prior decision in McKenzie v. Carroll Int’l Corp., the employee argued that the trial court committed plain error in excluding evidence and testimony regarding her coworker, because non-litigant employees may testify about age discrimination they suffered from their employers. Further, the employee contended, the evidence was relevant because the incident involving her coworker was similar in nature to her termination. They were both employed in the same city, within approximately seven months of one another; they were terminated on the same day; they were both in their fifties, thereby making them members of a protected class; and both were terminated by the same manager and owners for the alleged reason of financial difficulties.

Nonetheless, the court rejected the employee’s argument, finding that the record supported the trial court’s ruling that the two discharges were too dissimilar to be relevant under McKenzie. First, evidence of her coworker’s termination would not have been applicable to the employee’s claim and overall theme at trial that the poor performance of the sales department demonstrated the employer’s alleged discriminatory intent against her, because the coworker’s termination had nothing to do with the employer’s sales functions – i.e., he was employed in the technical/operations department. Second, the employee and her coworker were discharged by different supervisors in two separate departments. Thus, evidence of the coworker’s termination was too dissimilar from the employee’s discharge to render it relevant and admissible under McKenzie and it was properly excluded.

Unemployment Insurance Law

The current maximum weekly benefit amount in West Virginia is $424. The current minimum weekly benefit amount is $24 (WV ¶50-1700).

Unemployment Insurance Law

The current maximum weekly benefit amount in Wyoming is $430. The current minimum weekly benefit amount remains at $31 (WY ¶52-1700).