State Law Changes

October 21, 2009 Update

No Updates as of October 21, 2009

Recordkeeping/Posters Law

The Arizona Work Exposure to MRSA, Spinal Meningitis, or TB Poster has been updated (AZ ¶3-9900).

Recordkeeping/Posters Law

The state's unemployment insurance poster has been updated (AR ¶4-9900).

Minimum Wage Law

Living wage rate information for the following jurisdictions has been updated: Hayward, Pasadena, Petaluma, Port Hueneme, Santa Monica, Sebastopol and Ventura (CA ¶5-1000).

Colorado State Policy on Workplace and Domestic Violence (E.O. D02309)—Topic added

On October 7, 2009, Colorado Governor Bill Ritter (D) issued an Executive Order D02309 requiring the establishment of a universal policy to protect state employees from workplace and domestic violence. As an employer, the state of Colorado is affected by workplace violence which can compromise the safety of both victims and coworkers and result in lost productivity and increased healthcare costs, absenteeism, and employee turnover, said the governor. The EO directs the Colorado Department of Personnel and Administration to work with the Department of Human Services, the Colorado Attorney General’s Office and other state agencies to develop a universal policy addressing workplace violence, including domestic violence affecting the workplace, by March 2010. E.O. D020309, as signed Oct. 7, 2009, effective immediately. Para 6-21,050.

Recordkeeping/Posters Law

The state's employment discrimination posters have been updated, along with the poster relating to the employment of minors in food service. Connecticut's sexual harassment poster has been added to the summary (CT ¶7-9900).

Health Insurance Benefit Coverage Law

Delaware health insurers will be required to cover screenings for developmental delays in infants and toddlers, under a new law signed by Governor Markell. Covered children are entitled to receive the screenings at the ages of nine months, 18 months and 30 months, reflecting the positions of the American Academy of Pediatrics and the Delaware Early Childhood Council. The cost to policyholders for the new requirement is estimated to be only three cents per member per month (H. 199, L. 2009, effective November 25, 2009, at DE ¶8-4000).

Minimum Wage Law

The Delaware Workplace Fraud Act will take effect October 29, 2009. The law will prohibit employers from misclassifying workers as independent contractors. An employer engaged in work on a public works project who misclassifies workers more than twice in a two-year period may be debarred (Ch. 192 (H. 230), L. 2009, at DE ¶8-1000).

Fair Employment Practices Law

Former homosexuals are protected under the District of Columbia's anti-discrimination law, the District of Columbia superior court held, in a suit filed by an advocacy group for ex-gays alleging the NEA violated the ordinance by denying the group public accommodations. The court rejected an Office of Human Rights (OHR) determination that a characteristic must be immutable to be protected under the city's Human Rights Act, concluding the ordinance protects against discrimination based on both immutable and mutable traits. “Indeed, the HRA lists numerous protected categories such as religion, personal appearance, familial status, and source of income, which are subject to change,” wrote the court. Yet the court did not need to address whether sexual preference is in fact a mutable characteristic; the ordinance “took such an analysis out of the equation” by providing a broad definition of sexual orientation to encompass both sexual “preference” and “practice.” In protecting an individual's sexual practices, the ordinance protects individuals who no longer practice homosexuality. Thus, the court reversed the OHR's ruling that ex-gays are not protected under the statute. Nonetheless, the court held the NEA had the right to exclude the advocacy group from its conventions, and affirmed the OHR's finding of no probable cause of discrimination (Parents and Friends of Ex-Gays, Inc v Gov't Dist. Office of Human Rights, DC SuprCt, June 26, 2009, at ¶9-2500).

Unemployment Insurance Law

Effective January 1, 2010, the taxable wage base will be the first $8,500 of remuneration paid to an individual by the employer or its predecessor during that calendar year. Beginning January 1, 2015, the taxable wage base will be reduced to $7,000. The state has also amended the way contribution rates will be calculated (FL ¶10-1700).

Smoking in the Workplace Law

Hawaii law prohibiting smoking in enclosed places of employment and in certain state and local facilities has been amended in relation to an exemption from the law for correctional facilities. State correctional facilities are exempt, provided that smoking shall only be authorized for employees and volunteers of a correctional facility in an area outside the secure confines of the facility restricted from access by inmates or detainees that has been designated by the warden of the facility (Act 99 (S. 1073), L. 2009, at HI ¶12-2700).

Fair Employment Practices Law

The Illinois School Student Records Act has been amended to provide that no school employee shall be subjected to adverse employment action, the threat of adverse employment action, or any manner of discrimination because the employee is acting or has acted to protect communications as privileged or confidential pursuant to applicable provisions of state or federal law or rule or regulation (P.A. 628 (S. 1508), L. 2009, at IL ¶14-2500).

Family, Medical and Parental Leaves Law

Employees who are victims of domestic or sexual violence and who work for an employer that employs at least 15 but not more than 49 employees are entitled to a total of eight workweeks of unpaid leave during any 12-month period to address domestic or sexual violence issues. Under prior law, only employers that employed 50 or more employees were required to provide such leave. Exception may be made if the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the employer. A reasonable accommodation must be made in a timely fashion. Any exigent circumstances or danger facing the employee or his or her family or household member shall be considered in determining whether the accommodation is reasonable. In addition, the definition of “family or household member” has been extended to include a person related by blood or by present or prior marriage, or a person who shares a relationship through a son or daughter jointly residing in the same household (P.A. 96-635 (S. 1770), L. 2009, effective August 24, 2009, at IL ¶14-7000).

Health Insurance Benefit Coverage Law

Group or individual accident and health insurance policies and managed care plans that provide coverage for hospital and medical treatment on an expense-incurred basis may offer reasonably designed wellness programs, under a new law in Illinois. The program may provide rewards, contributions, premium reductions or reduced medical, prescription drug or equipment copayments, coinsurance or deductibles (or a combination of these incentives) for participation in any health behavior wellness, maintenance or improvement program approved or offered by the insurer or managed care plan. Insureds or enrollees may be required to provide evidence of participation in the wellness program, and individuals who are unable to participate due to an adverse health factor may not be penalized based on adverse health status (P.A. 639 (S. 1877), L. 2009, effective January 1, 2010, at IL ¶14-4000).

Group accident or health insurance policies and HMOs that cover prescription drugs generally may not exclude coverage of an FDA-approved drug used in cancer treatment because it has not been approved by the FDA for the specific type of cancer for which it is prescribed. The drug, however, must meet certain standards, which were recently revised (P.A. 457 (H. 2275), L. 2009, effective August 14, 2009, at IL ¶14-4000).

When a physician includes a “may not substitute” order on a prescription, health insurance policies and health care service plans that cover immunosuppressant drugs may not require or cause pharmacists to interchange another immunosuppressant drug or formulation without notification and documented consent of the prescribing physician and patient. For purposes of the law, “immunosuppressant drugs” include drugs used clinically to prevent the rejection of transplanted organs and tissues, but do not include those used for treatment of autoimmune diseases. Medications issued for inpatient care in a licensed hospital are also excluded (P.A. 766 (H. 152), L. 2009, effective June 1, 2010, at IL ¶14-4000).

Recordkeeping/Posters Law

The following posters have been added to the summary: Employee Classification Act of 2008 poster; Day and Temporary Labor Services Act posters; and Smoke Free Illinois Act posters (IL ¶14-9900).

Unemployment Insurance Law

Illinois has amended its Unemployment Insurance Act with respect to the dependent child allowance rate and as follows.

The provisions of the law pertaining to voluntary leaving have been amended. Now, an individual will not be disqualified from receiving benefits for leaving work voluntarily if he or she is deemed physically unable to perform his or her work by a licensed physician, or because the individual's assistance is necessary for the purpose of caring for his or her spouse, child, or parent who is in poor physical or mental health.

In addition, an individual will not be disqualified from receiving benefits if he or she left work due to verified domestic violence where the violence reasonably caused the individual to believe that continued employment would jeopardize his or her safety or that of a family member. Nor will an individual be denied benefits for voluntarily leaving work due to a change in location of employment of the individual's spouse from which it is impractical for the individual to commute (IL ¶14-1700).

Violence in the Workplace Law

Illinois has expanded its stalking and cyberstalking laws (P.A. 686 (H. 2542), L. 2009, at IL ¶14-3300).

Unemployment Insurance Law

The current maximum weekly benefit amount in Indiana is $390, and the minimum amount is set in the law at $50 (IN ¶15-1700).

Fair Employment Practices Law

A marketing director who was discharged from her job because she “could not catch up fast enough after she returned from maternity leave” was entitled to a new trial on her pregnancy bias claim, held a divided Iowa Supreme Court in a matter of first impression. After reviewing interpretations of the federal Pregnancy Discrimination Act (PDA), the supreme court determined that the Iowa Civil Rights Act's (ICRA) express prohibition against pregnancy bias broadly includes women who are “affected by pregnancy, childbirth, and other related conditions.” Therefore, women who have recently returned to the workplace after giving birth or taking maternity leave are protected under ICRA. Even though ICRA's language was different than the PDA's, the supreme court reasoned that such a broad interpretation was “necessary to effectuate the purpose of the statute.” In so holding, the supreme court cautioned that ICRA does not prohibit an employer from discharging employees based on their “decision to prioritize family over work.” In addition, employees pursuing intentional discrimination claims under ICRA are entitled to jury instruction on pretext “where, as here, a rational finder of fact could reasonably find the defendant's explanation false and could infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose” (Deboom v Raining Rose Inc, August 28, 2009, at IA ¶16-2500).

Smoking in the Workplace Law

The Iowa Board of Regents has adopted rulemaking regarding smoking at the state university. Consistent with the Iowa Smokefree Air Act, Iowa State University has adopted a smoke-free campus policy (http://policy.iastate.edu./policy/smoking). Under this policy, smoking is prohibited in “public buildings and vehicles owned, leased, or operated by or under the control of” the university as well as on the entire “grounds of the university.” Exceptions to the policy allow smoking in designated private apartments in university housing and in enclosed areas within the university where a medical or scientific research or therapy program is being conducted, if smoking is an integral part of the program. The Iowa Department of Public Health is responsible for enforcement, and compliance is to be coordinated with the ISU Department of Environmental Health and Safety (Rule 681 IAC 13.17(1), adopted effective September 30, 2009 [8070B, IAB 8/26/2009], at IA ¶16-2700).

Unemployment Insurance Law

For an individual who does not have sufficient wages in the base period to otherwise qualify for benefits, his or her base period will be the last four completed calendar quarters immediately preceding the first day of the individual's benefit year if such period qualifies the individual for benefits (IA ¶16-1700).

Unemployment Insurance Law

The current maximum weekly benefit amount in Kentucky is $415. The minimum amount is set in the law at $39 (KY ¶18-1700).

Smoking in the Workplace Law

The state has enacted a law relating to smoking in state parks and historic areas. A person may not smoke tobacco or any other substance in, on or within 20 feet of a beach, playground, snack bar, group picnic shelter, business facility, enclosed area, public place or restroom in a state park or state historic site. To the extent possible and within existing budgeting resources, the Maine Center for Disease Control and Prevention is to erect signs and undertake public education initiatives regarding smoking prohibitions in certain areas of state parks and state historic sites (Ch. 65 (S. 26), L. 2009, at ME ¶20-2700).

Sexual Harassment–Former CEO must repay company $6.7 million for misconduct, including sexual harassment

The Massachusetts Supreme Judicial Court has ruled that the former president and CEO of a pharmaceutical company must repay the company $6.7 million in salary and bonuses he collected from 1990 through 1996, when he was fired for harassing female employees and misappropriating company funds. Those charges led to civil lawsuits against the former CEO, Lars P.E. Bildman, and the company, Astra USA, Inc (Astra), including a $9.8 million settlement in February 1998 with the Equal Employment Opportunity Commission (EEOC) to compensate the harassment victims, and a 35-count criminal indictment Bildman and others. The settlement with the EEOC was, at that time, the largest in the agency’s history. (Astra USA, Inc v Bildman, MassSupJudCt, October 5, 2009).

A Massachusetts Superior Court jury found Bildman liable to Astra for fraud, conversion, waste of corporate assets, breach of fiduciary duty, and sexual harassment of Astra employees, and awarded Astra damages in the aggregate amount of $1,040,812. The same jury found Astra not liable to Bildman for breach of a 1993 employment agreement between the parties, but awarded Bildman $203,691 in damages related to a March 1996, supplemental stock grant. Following a post trial evidentiary hearing, the trial court judge ruled that Astra could not recover by forfeiture the compensation it paid to Bildman from 1990 through his termination in June 1996, the period in which he breached his fiduciary obligations to Astra.

The Massachusetts Supreme Judicial Court, on its own initiative, transferred the case from the Appeals Court. The Massachusetts high court overturned the lower court’s decision regarding forfeiture of the salary and bonuses, finding that New York’s ”faithless servant” doctrine allowed the company, which was incorporated in New York but had it principal place of business in Massachusetts, to go after $5.6 million in salary and $1.2 million in bonuses paid to Bildman.

However, it affirmed of trial court’s pre-trial judgments that Astra could not rescind the 1993 employment agreement and that the company could not recovery its costs for the sexual harassment investigation. The state high court also affirmed the ruling awarding Bildman the $203,691 in damages related to the supplemental stock grant, finding that, on appeal, Astra waived any claim of forfeiture of that award. In addition, the state high court affirmed the trial judge’s dismissal on summary judgment of Bildman’s claim for attorney's fees and costs under his employment agreement and his libel claims against the company and two officials. The Massachusetts Supreme Judicial Court remanded the case to the Superior Court for entry of judgments consistent with the high court’s opinion.

Drug Testing Law

The controlled substance and alcohol use and testing exemption for specified state government employees has been expanded (Ch. 55 (S. 1172), L. 2009, at MN ¶24-8600).

Age Discrimination–Evidence showed desire to displace older workers with younger workforce

A discharged 53-year-old employee presented enough evidence of age-based discriminatory animus to get her Age Discrimination in Employment Act (ADEA)and state law claims to a jury, ruled the Eighth Circuit Court of Appeals, reversing a district court’s grant of summary judgment to her employer for lack of sufficient direct evidence of bias under the pre-Gross v FBL Fin Servs, Inc standard. In Gross (92 EPD ¶43,584), a divided Supreme Court ruled that an ADEA plaintiff alleging disparate treatment must establish by preponderance of evidence that age was the “but-for cause” of the adverse employment action challenged. Here, under any test, the employee raised a genuine issue for trial on the ultimate question of age bias vel non, the appeals court concluded. (Baker v Silver Oak Senior Living Mgmt Co, LC, 8thCir, September 14, 2009).

Most significant among the evidence offered by the employee were statements showing preference for younger over older workers that were made by her supervisor and the CEO, including: that the management team was “missing the boat by not hiring more younger, vibrant people”; that they “should start looking over applications better and try to consider hiring younger people”; and instructions that the employee fire certain workers in their 50s and 60s so that “younger workers”; could be hired who would be “better workers, have more energy, be more enthusiastic and stimulate the residents.” The clearly reflected age-based discrimination in these statements infected other remarks that might otherwise be subject to interpretation, noted the circuit court. Moreover, there was ample evidence of pretext given that the employee was placed on probation for reasons the evidence suggested were false and known to be false, and she was asked twice during her probation if she intended to resign, suggesting a quest to end her employment. Add to that the shifting and expanding explanations for her discharge, and a jury could find that management “harbored a discriminatory attitude toward older employees and desired to displace them in favor of a younger workforce,” wrote the appeals court.

Health Insurance Benefit Coverage Law

Under a new law in Missouri, health carriers and health benefit plans must offer coverage for prosthetic devices and services, including original and replacement devices, as prescribed by a physician acting with the scope of practice. The benefit amount may not be less than the annual and lifetime benefit maximums applicable to basic health care services under the plan. If annual or lifetime maximums do not apply to basic health care services, they similarly may not apply to prosthetics coverage. Also, any copayment, coinsurance, deductible and maximum out-of-pocket amount applicable to prosthetics coverage may not exceed the most common amounts applicable to basic health care services under the plan (H. 577, L. 2009, effective January 1, 2010, at MO ¶26-4000).

Health benefit plans and health carriers may not impose a copayment that exceeds 50 percent of the total cost of providing any single chiropractic service to its enrollees (H. 577, L. 2009, effective August 28, 2009, at MO ¶26-4000).

Subject to contractual provisions, Missouri’s mental health coverage requirement may now include at least two visits per year to a licensed marital and family therapist (H. 326, L. 2009, effective August 28, 2009, at MO ¶26-4000).

Minimum Wage Law

The minimum hourly wage in Montana will remain at $7.25 next year. Montana law requires an annual adjustment to the state minimum wage to be calculated no later than September 30 of each year, rounded to the nearest five cents, based on inflation as measured by the CPI. The law specifically ties Montana's minimum wage to increases in the CPI, leaving no option for a reduced wage when the CPI declines (Montana Department of Labor and Industry Media Release, September 21, 2009, at MT ¶27-1000).

Smoking in the Workplace Law

The Montana Clean Air Act provides that, as of October 1, 2009, smoking is prohibited in bars and casinos. The law provided for bars and casinos to be exempt from the law until September 30, 2009 (Sec. 50-40-104). The Department of Public Health and Human Services has adopted amended rules, also effective October 1, 2009, implementing the Act. The rules, which include changes regarding inspections and enforcement and handling of complaints, are found in the Administrative Rules of Montana, under Title 37, Ch. 37-113, as ARM 37.113.101, 37.113.108, and 37.113.112 (Montana Register No. 15, August 13, 2009; MAR Notice No. 37-477) (MT ¶27-2700).

Smoking in the Workplace Law

The law providing for exemptions from the Nebraska Clean Indoor Air Act for certain indoor areas has been amended to provide an exemption for cigar bars (L.B. 355, L. 2009, effective August 31, 2009, and operative retroactive to June 1, 2009, at NE ¶28-2700).

Marital Status Discrimination Law—Topic added

Nevada Secretary of State Ross Miller issued the first domestic partnership certificate to a Nevada couple in Carson City on October 1, 2009, the same day the Nevada Domestic Partnership Act became effective. Under the Act (Ch. 393 (S.B. 283), L. 2009), domestic partners have the same right to nondiscriminatory treatment as that provided to spouses, and public agencies may not discriminate against any person or couple on the basis or ground that the person is a domestic partner rather than a spouse or that the couple are domestic partners rather than spouses. The law also provides that no public or private employer in this State is required to provide health care benefits to or for the domestic partner of an officer or employee, but may voluntarily provide such benefits. Ch. 393 (S.B. 283), L. 2009, as enacted Sections 2 through 8, effective Oct. 1, 2009. Paras 29-20,950.01 through 29-20,950.07.

Wage Payment Law

A new payroll deduction is authorized under amended rules adopted by the New Jersey Department of Labor and Workforce Development, Division of Wage and Hour Compliance. This rule amendment allows for wage withholding for payments authorized either in writing by employees, or under a collective bargaining agreement, for health club membership fees or for child care services, provided such deductions are approved by the employer (New Jersey Administrative Code Rule 12:55-2.1, amended effective September 21, 2009 (41 N.J.R. 3459(a)), at NJ ¶31-1200).

Fair Employment Practices Law

On behalf of any employee paid less than the wage to which he or she is entitled, the commissioner may bring any legal action necessary, including administrative action, to collect such claim and as part of such legal action, in addition to any other remedies and penalties otherwise available. Employers may be assessed an additional amount as liquidated damages equal to 25% of the total amount of wages found to be due, unless the employer proves a good faith basis for believing that its underpayment of wages was in compliance with the law (A. 6963, L. 2009, effective November 24, 2009, at NY ¶33-2500).

Health Insurance Benefit Coverage Law

According to the Advisory Committee on Immunization Practices (ACIP) of the federal Centers for Disease Control and Prevention (CDC), children should receive both the seasonal flu and novel H1N1 vaccines in 2009. Therefore, under New York’s existing “Child Wellness Law,” the vaccinations must be covered for children who are aged 19 and younger and enrolled in comprehensive health plans. Coverage may not be subject to copayment, coinsurance or annual deductible (NY Governor's Press Release, issued September 10, 2009, at NY ¶33-4000).

Wage Payment Law

The New York Labor Law relating to payment of wages has been amended to allow construction contract related wage complaints to be filed with the Commissioner of Labor. This amendment provides that any employee, or the recognized and certified collective bargaining agent acting on the employee's behalf, contractor, or the recognized and certified labor organization with which the contractor has executed a collective bargaining agreement covering wages, benefits and supplements, may file with the Commissioner of Labor a complaint regarding an alleged violation of New York's wage payment law, minimum wage law, or a violation of the New York General Business Law relating to construction contracts (Art. 35-E) for an investigation of such complaint and statement setting the appropriate remedy, if any (A. 6493, L. 2009, effective September 8, 2009, at NY ¶33-1200).

Drug Testing Law

North Carolina has amended its workplace drug testing law to provide that a prospective employee required to submit to a controlled substance examination whose first screening test produces a positive result may waive a second examination that is intended to confirm the results. Also, all screening tests for current employees that produce a positive result shall be confirmed by a second examination of the sample utilizing a specified method (Session Law 2009-535 (S. 643), L. 2009, enacted and effective August 28, 2009, at NC ¶34-8600).

Health Insurance Benefit Coverage Law

The state has authorized a single health insurance pilot project with pooling of both large and small employers. The goal of the project is to reduce the number of uninsured North Carolinians and to decrease health insurance costs for purchasers in the project area. Coverage under the demonstration project must begin no later than December 1, 2010, and may continue through December 31, 2014 (Ch. 568 (H. 212), L. 2009, effective August 28, 2009, and expires December 31, 2014, at NC ¶34-4000).

Unemployment Insurance Law

The current maximum weekly benefit amount in North Carolina is $505. The current minimum weekly benefit amount is $43 (NC ¶34-1700).

Criminal Background Checks Rules

Teachers, substitutes, educational aides, holders of pupil activity supervisor permits, positions that require a license issued by the state board of education, or non-licensed personnel are required to undergo a criminal background checks as a condition of employment. A district may employ an applicant conditionally until the required criminal records check is completed and the district receives the results of the criminal records check. If the results of the criminal records check indicate that, the applicant does not qualify for employment or licensure, the district shall release the applicant from employment. Chapter 3301-20, Sections 3301-20-1 and 3301-20-03, as adopted effective Aug. 27, 2009. Paras 36-23,650.01 and 36-23,650.02.

Criminal Background Checks Rules

No district shall employ any individual if he/she has been convicted of or pled guilty to a non-rehabilitative offense as a school bus and school van driver. A district shall release from employment an individual if the results of a criminal records check indicate that, the applicant does not qualify for employment. Chapter 3301-83, Section 3301-83-23, as adopted effective Aug. 27, 2009. Para 36-23,650.12.

Minimum Wage Law

Oregon Labor Commissioner Brad Avakian has announced that the state's minimum wage will remain $8.40 next year. Due to a decline of 1.48% in the Consumer Price Index (CPI) from August 2008 to August 2009, the minimum wage will hold steady for the first time since Oregon voters enacted Ballot Measure 25 in 2002 (Oregon Bureau of Labor and Industries Press Release, September 16, 2009, at OR ¶38-1000).

The current living wage rate for Ashland is $12.96 per hour (OR ¶38-1000).

Recordkeeping/Posters Law

The Ashland living wage poster has been updated (OR ¶38-9900).

Unemployment Insurance Law

Temporary disability information has been updated (RI ¶41-1700).

Unemployment Insurance Law

The current maximum weekly benefit amount in South Carolina is $326. The minimum amount is set in the law at $20 (SC ¶42-1700).

Unemployment Insurance Law

Tennessee has amended its Employment Security Law with respect to the taxable wage base and premium rate tables. Additionally, effective through December 31, 2009, Premium Rate Table 1 is in effect. Employers with a positive reserve ratio of 20% or more will receive a 0.50% premium rate. Note, however, retroactively effective to January 1, 2009, and applicable until the unemployment trust fund equals or exceeds $650 million, there is an additional premium of 0.6% on all rates in Tables 1, 2 and 3 (TN ¶44-1700).

Adjudication of Discrimination Claims Rules—Topic added

The Labor Commission's Adjudication Division has adopted specific rules of procedure for adjudication of employment discrimination disputes. Evidentiary hearings shall be conducted formally in accordance with Utah Code Section 63G-4-206. The petitioner shall have the burden of proving the claim of discrimination by a preponderance of evidence. R602-7, Sections R602-7-1 through R602-7-6, as adopted effective March 10, 2009 and amended effective May 22, 2009. Paras 46-20,126.01 through 46-20,126.06.

Discrimination and Affirmative Action in State Employment

An employee may not be dismissed because of race, sex, age, disability, national origin, religion, political affiliation, or other non merit factor. The executive director shall establish rules governing the procedural and documentary requirements of disciplinary dismissals and demotions. Title 67, Chapter 19, Section 67-19-18, as amended by Ch. 9 (S.B. 126), L. 2009, effective May 2, 2009. Para 46-23,400.04.

Discrimination Rules–State Employment

Employment actions may not be based on race, religion, national origin, color, gender, age, disability, protected activity under the anti-discrimination statutes, political affiliation, military status or affiliation or any other non-job related factor. R477-2, Section R477-2-3, as amended effective July 1, 2009. Para 46-20,075.01.

Employment Selection Procedures Act—Topic added

An employer may not request an applicant's Social Security Number, date of birth, and driver license number before (a) the individual is offered a job or (b) if applicable to a specific position for which the applicant is applying, and with the applicant's consent, at the time in the employer's employment selection process when the employer obtains a criminal background check; credit history (subject to federal Fair Credit Reporting Act requirements); or driving record from the Driver License Division. Such information collected in the initial application process can not be used by the employer for any other purpose than to determine whether or not the employer will hire the applicant as an employee. Ch. 174 (H.B. 206), L. 2009, effective May 12, 2009. Paras 46-21,600.01 through 46-21,600.07.

Preemployment Inquiries Law

An employer that is not a health care facility and that is hiring an individual to provide services to an elderly or disabled person in the home of the elderly or disabled person may obtain a background check of the individual from the Department of Health via the database of substantiated abuse and neglect cases. However, the employer must certify to the department that the employer intends to hire, or has hired, the individual whose information the employer has submitted to the department for the purpose of providing care to an elderly adult or a disabled person in the home of the elderly adult or disabled person (Ch. 267 (H. 142), L. 2009, at UT ¶46-9000).

Rules for Family Leave-State Employment

The rules were amended to clarify those ineligible for leave benefits and to place restrictions on how leave shall or may not be accrued or used. Also, unnecessary employee requirements and expired provisions were removed, and a provision was added prohibiting employees on FMLA from working second jobs without written consent to prevent abuse. R477-7, Sections R477-7-4, R477-7-5, R477-7-13 and R477-7-15, as amended effective July 1, 2009. Paras 46-22,500.01, 46-22,500.02, 46-22,500.04 and 46-22,500.05.

Workforce Harassment Policy and Procedure-State Employment

It is the State of Utah's policy to provide all employees a working environment that is free from discrimination and harassment based on gender, or protected activity under state and federal law. An employee may be subject to discipline for workplace harassment, even if: (a) the harassment is not sufficiently severe to warrant a finding of unlawful harassment, or (b) the harassment occurs outside of scheduled work time or work location. (3) Once a complaint has been filed, the accused may not communicate with the complainant regarding allegations of harassment. R477-15, Sections R477-15-1 through R477-15-3, as amended effective July 1, 2009. Paras 46-21,575.01 through 46-21,575.03.

Smoking in the Workplace Law

Vermont's law requiring employers to have smoking policies prohibiting smoking in the workplace and restricting smoking in designated smoking areas has been amended. The use of lighted tobacco products is prohibited in the workplace, and provisions relating to employer smoking policies are repealed. “Workplace” is defined as an enclosed structure where employees perform services for an employer or, in the case of an employer who assigns employees to departments, divisions, or similar organizational units, the enclosed portion of a structure to which the employee is assigned. Except for schools, “workplace” does not include areas commonly open to the public or any portion of a structure that also serves as the employee's or employer's personal residence. For schools, “workplace” includes any enclosed location where instruction or other school-sponsored functions are occurring and students are present. Exceptions to the law provide that the law is not to be construed to restrict the ability of residents of the Vermont veterans' home to use lighted tobacco products in the indoor area of the facility in which smoking is permitted. The law relating to smoking in public places has been amended with regard to exceptions, to limit exceptions to areas not commonly open to the public of owner-operated business with no employees (Act 32 (S. 7), L. 2009, at VT ¶47-2700).

Family, Medical and Parental Leaves Law

Washington's family leave law generally is similar to, and runs concurrently with, the federal FMLA. But unlike the federal law, Washington’s law allows leave to be taken for the care of an employee's registered domestic partner with a serious health condition. Another significant difference is that Washington's family leave law does not address exigency leave or leave for a covered service member. Therefore, an employer is not required to provide exigency leave or leave for a covered service member for a registered domestic partner. Also, because the FMLA does not recognize registered domestic partners, an absence to care for an employee's registered domestic partner is not counted towards the 12 weeks of the FMLA entitlement. For example, if an employee uses 12 weeks of leave to care for his or her registered domestic partner during a 12-month period, and no other FMLA leave was used, the employee is still entitled to his or her full 12-week FMLA entitlement during the same 12-month period because the leave used was provided for a purpose not covered by FMLA. However, if an employee uses 12 weeks of leave to care for their parent or for another FMLA – qualifying reason, then during that same 12-month period, the employer would not be required to provide additional leave under Washington's family leave law to care for the employee's registered domestic partner because the 12-week entitlement under FMLA and Washington's family leave law has been exhausted (Title 357, Ch. 357-31, Sec. 357-31-520, as amended effective December 3, 2009, at WA ¶49-7000 (Note: This rule was originally effective September 16, 2009, but has been postponed until December 3, 2009, pending Referendum 71, which will be voted on November 3, 2009).

Family Military Leave Rules

The September 16, 2009 rule, permitting state employees who are a registered domestic partner of a member of the armed forces of the United States, National Guard, or reserves who have been notified of an impending call or order to active duty or have been deployed are entitled to a total of 15 days of unpaid leave per deployment. The existing law (S.B. 5688, L. 2009, effective July 26 2009) provides this entitlement encouraged voters to file a sufficient referendum petition on this legislation. Referendum 71 has qualified for the November 3, 2009, general election ballot. If voted into law, R-71 will be effective 30 days after the election. Therefore, the effective date is being changed to December 3, 2009, and if the referendum is not voted into law, an emergency amendment to the rule will follow the election. Title 357, Chapter 357-31, Section 357-31-373, as postponed Sept. 2, 2009 until Dec. 3, 2009. Para 50-22,502.01.

Law Against Discrimination

The definitions that apply to Washington's Law Against Discrimination were reenacted without changes. Title 49, Chapter 49.60, Section 49.60.040, as amended by Ch. 187 (H.B. 1059), L. 2009, effective July 26, 2009. Para 50-20,025.40.

Minimum Wage Law

The minimum wage in Washington will remain at $8.55 an hour in 2010 because the Consumer Price Index for the past 12 months did not increase. The Department of Labor and Industries recalculates the state's minimum wage each year in September as required by Initiative 688, which was approved by Washington voters in 1998. The law requires that the state minimum wage be increased for inflation each year according to the change in the federal Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) during the 12 months ending each August 31. The CPI-W is a national index covering the cost of goods and services needed for day-to-day living. However, the CPI-W decreased 1.9 percent during the 12‑month period ending in August. This is the first time since the initiative passed that there is no increase in the state's minimum wage (Washington State Department of Labor and Industries News Release, September 29, 2009, at WA ¶49-1000).

Parental Leave Rules-State Employees

The September 16, 2009, effective date of the rule extending some family and medical leave entitlements in public employment to registered domestic partners was postponed until December 3, 2009. The existing law (S.B. 5688, L. 2009, effective July 26 2009) provides state-registered domestic partners and partnerships with the same power, rights and responsibilities available to married spouses, including leave to care for a domestic partner with a serious health condition, and voters filed a sufficient referendum petition on this legislation. Referendum 71 has qualified for the November 3, 2009, general election ballot. If voted into law, R-71 will be effective 30 days after the election. Therefore, the effective date is being changed to December 3, 2009, and if the referendum is not voted into law, an emergency amendment to the rule will follow the election. Title 357, Chapter 357-31, Sections 357-31-520, 357-31-525, and 357-31-535, as postponed on Sept. 2, 2009 until effective Dec. 3, 2009. Paras 50-22,501.13, 50-22,501.14, and 50-22,501.16.

Veterans' Preference Rule-Public Employment

The September 16, 2009, effective date of the rule extending veterans' preference to registered domestic partners in public employment was postponed until December 3, 2009. The existing law (S.B. 5688, L. 2009, effective July 26 2009) provides state-registered domestic partners and partnerships with the same power, rights and responsibilities available to married spouses, including veterans’ preference, and voters filed a sufficient referendum petition on this legislation. Referendum 71 has qualified for the November 3, 2009, general election ballot. If voted into law, R-71 will be effective 30 days after the election. Therefore, the effective date is being changed to December 3, 2009, and if the referendum is not voted into law, an emergency amendment to the rule will follow the election. Title 357, Chapter 357-16, Section 357-16-110, as postponed Sept. 2, 2009 until Dec. 3, 2009. Para 50-21,800.01.

Unemployment Insurance Law

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

Unemployment Insurance Law

An individual will not be disqualified from receiving benefits if the Department finds that the individual became unemployed as a result of relocation due to the transfer of his or her spouse, either within or outside the state, from which it is impractical to commute to the place of employment, and upon arrival at the new residence, the individual is in all respects able and available for suitable work and registers for work with the Department or an equivalent agency of another state where the individual is residing. To qualify, the individual must be married to a member of the United States armed forces whose relocation is the result of an assignment on active duty, active guard or reserve duty, active duty pursuant to Title 10 of the United States Code, or training or other duty performed by a member of the Army National Guard of the United States or the Air National Guard of the United States. Any benefits awarded will be noncharged benefits and will not affect an employer's experience rating account. This provision will be repealed effective July 1, 2018 (WY ¶52-1700).