State Law Changes

February 29, 2008 Update

Unemployment Insurance Law

Since the trust fund balance was at least 70% of the desired level at the end of 2007, Schedule C of the tax table will continue to apply for calendar year 2008. In addition, the Shared Cost Assessment for 2008 will be 0.2%. Note that all experience-rated employers (except new employers and employers assigned a rate of at least 5.4% but no greater than 5.45%) are required to pay the 0.06% employment security administrative (ESA) enhancement assessment under Schedule C. Accordingly, rates for 2008 range from 0.44% to 6.04% (¶1-1700).

No Updates as of February 29, 2008

Preemployment Inquiries Law

On February 28, 2008, the Ninth Circuit Court of Appeals denied a consolidated action from a coalition of business groups and immigration rights advocates (plaintiffs-appellants) requesting an injunction to block implementation of Arizona's employers sanctions law, the Legal Arizona Workers Act (H. 2779), while the circuit court determines the legality of the law, which went into effect January 1, 2008. "Balancing the seriousness of the legal questions presented, the likelihood of success on the merits, the possibility of irreparable injury to appellants, and the evidence of hardships to both sides, we conclude the appellants have not shown that the case warrants a grant of temporary relief during the pendency of these expedited appeals," held the Ninth Circuit. The appellants' request was heard by Circuit Court judges J. Clifford Wallace, Edward Leavy and Pamela Ann Rymer. In their decision, the judges ordered consolidated briefs by the appellants to be due by March 31, 2008, with answering briefs due April 29, 2008 (Chicanos Por La Causa, Inc v Napolitano, 9thCir, Nos 07-17272, 07-17274 & Arizona Contractors Ass'n, Inc v Candelaria, 9thCir, Nos 08-15357, 08-1539 & 08-15360).

Of note, on February 19, 2008, US District Court Judge Neil V. Wake of the District Court of Arizona denied the plaintiff's request for an injunction to block implementation of the law pending an appeal to the Ninth Circuit, concluding that the plaintiffs have shown neither a likelihood of success on the merits nor a balance of hardships in their favor.

The Arizona county prosecutors, who have been free to investigate illegal activity under the Legal Arizona Workers Act, may start prosecuting employers for violations of the Act starting March 1, 2008.

Criminal Background Checks Law

A county child welfare agency is authorized with criminal record clearances and exemption authority to receive and provide criminal record clearance or exemptions from another county that has that authority. Health and Safety Code, Division 2, Chapter 3, Section 1522, as amended by Ch. 580 (S.B. 776), L. 2007 and Ch. 583 (S.B. 703), L. 2007, effective Jan. 1, 2008. ¶5-23,601.11.

The Attorney General is required to furnish criminal history information to city attorneys pursuing civil gang injunctions or drug abatement actions. Also, the list of agencies entitled to receive criminal history reports was expanded to include an illegal dumping enforcement officer, an agency providing conservatorship investigations, a court investigator providing investigations or reviews in conservatorships, and a probation officer, domestic relations investigator, other officer designated to investigate potential dependency cases, or court investigator providing investigation in guardianships. Penal Code, Part 4, Title 1, Chapter 1, Article 3, Section 11105, as amended by Ch. 581 (S.B. 340), L. 2007, effective Jan. 1, 2008. ¶5-23,604.01.

Discrimination Based on Medical Records Law

Any business organized for the purpose of maintaining medical information in order to make the information available to an individual or to a provider of health care at the request of the individual or a provider of health care, for purposes of allowing the individual to manage his or her information, or for the diagnosis and treatment of the individual shall maintain the same standards of confidentiality required of a provider of health care with respect to medical information disclosed to the business. Civil Code, Division 1, Part 2.6, Chapter 1, Section 56.06, as amended by Ch. 699 (A.B. 1298), L. 2007, effective Jan. 1, 2008. ¶5-22,350.021.

Minimum Wage Law

Hotel employers near the Los Angeles International Airport have appealed to the California supreme court seeking reversal of a December 27, 2007, decision by a state appellate court in Rubalcava v Martinez. The ruling upheld the city’s "Hospitality Enhancement Zone Ordinance," which set minimum wage rates for employees working in airport-area hotels that exceed state minimum wage requirements. The ordinance - a reworked version of an earlier ordinance that had drawn fire - was struck down by a lower court, but reinstated in December on appeal.

Recordkeeping/Posters Law

The Employment Development Department has clarified the documentation required for determining eligibility for the paid family leave program (CA ¶5-9900).

Veterans’ Preference in Public Employment Law

Topic added. Veterans, widows or widowers of veterans, disabled veterans and spouses of
100 percent disabled veterans are entitled to preference in public employment. Government Code, Title 2, Division 5, Part 2, Chapter 4, Article 4, Sections 18971 through 18979, as amended by Ch. 494 (A.B. 2550), L. 2006, effective Jan. 1, 2007. ¶5-21,750.01 through ¶5-21,750.09.

Criminal Background Checks Rules

Each current employee in a covered position working with children or youth services providers shall be subjected to an initial criminal background check beginning within forty-five (45) days of the publication in the D.C. Register of the notice of final rulemaking implementing the criminal background check requirements of the Act. The personnel authority shall notify each current employee in a covered position that he or she shall be subject to an initial criminal background check under the Act prior to conducting any such check. Title 6, Chapter 4, Sections 412 through 499, as amended and adopted effective Jan. 25, 2008. ¶9-23,650.01 through ¶9-23,650.15.

Minimum Wage Law

The Minimum Wage Act Revision Act of 1992 has been amended by temporary emergency legislation to establish minimum compensation requirements for security officers working in the District of Columbia. Employers must pay a security officer working in an office building in the District wages, or any combination of wages and benefits, that are not less than the combined amount of the minimum wage and fringe benefit rate for the guard 1 classification established by the United States Secretary of Labor pursuant to the Service Contract Act of 1965 (Act 257 (B. 199), L. 2007, effective until April 22, 2008, at DC ¶9-1000).

No Updates as of February 29, 2008

Unemployment Insurance Law

For calendar year 2008, the adjusted state experience factor is 103%, and the benefit conversion factor remains at 138.4%. Total rates range from 0.8% to 7.2%, including the 0.6% fund building factor in effect for 2008. An employer whose contribution rate is 5.5% or higher and whose total quarterly wages are less than $50,000 pays contributions at 5.4% in that quarter. New employers pay 3.4% for 2008, including the 0.6% fund building rate (IL ¶14-1700).

Unemployment Insurance Law

For 2008, rates in Schedule A are in effect. These rates range from 1.1% to 4.1% for positive-balance employers, and from 4.4% to 5.6% for negative-balance employers. New employers pay 2.7%. There are no additional assessments for 2008 (IN ¶15-1700).

Military and Emergency Services Leave Law

An employer shall not discriminate against any officer or enlisted person of the national guard or organized reserves of the armed forces of the United States or any member of the civil air patrol because of that membership. Upon completion of the duty or service, the employer shall restore the person to the position held prior to the leave of absence, or employ the person in a position of like seniority, status, and pay. Violations of these provisions are to be prosecuted by the attorney general or the county attorney of the county in which the violation occurs (H. 2065, L. 2007, enacted and effective February 14, 2008, at IA IA ¶16-7200).

Unemployment Insurance Law

Iowa contribution rates will continue to be determined under Rate Table 6 in 2008, and will range from zero to 8.0%. New nonconstruction employers pay 1.0%, and new construction employers pay 8.0%. There is no administrative surcharge in effect for 2008. The reserve fund rate is 0.0% this year. Employers that receive a 0.0% rate are still required to file timely reports (IA ¶16-1700).

Unemployment Insurance Law

For 2008, Schedule III is in effect, the ratio of the fund balance to total payrolls is 1.682%, and the average required yield on taxable wages is 2.96%. Eligible positive-balance employers pay rates ranging from 0.0% to 5.38%. New employers pay 4.0%, except new construction employers pay 6.0%. Negative-balance employers will pay rates ranging from 5.60% to 7.40%. Newly-rated government employers pay 0.11% in 2008 (KS ¶17-1700).

Veterans’ Preference in Public Employment Law

Topic added. Persons who served in the any of the armed forces of the United States who have been honorably discharged shall be preferred for appointments and employed to fill positions in every public department and upon all public works of the state of Kansas. Chapter 73, Article 2, Sections 73-201 through 73-206. ¶17-21,750.01 through ¶17-21,750.06.

Veterans’ Preference in Public Employment Law

Topic added. Veterans, widows or widowers of veterans, disabled veterans and spouses of disabled veterans are entitled to preference in public employment. Title III, Chapter 18A, Section 18A.150. ¶18-21,750.01.

Disability Discrimination in State Employment Rule

The policy of the State of Maine is that no qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of the state or be subjected to discrimination by the state. The protections in this non-discrimination policy and grievance procedure shall apply to individuals with disabilities as defined in Title II of the Americans with Disabilities Act and in Section 504 of the Rehabilitation Act, i.e., those persons who have a physical or mental impairment that substantially limits one or more of their major life activities, have a record of such an impairment, or are regarded as having such an impairment.

Complaints from individuals with disabilities alleging discrimination with respect to access to state programs, services, and activities shall be processed quickly and fairly. At the same time, complainants should be informed that the Maine Human Rights Commission also will investigate claims of discrimination, if a complaint is filed with that office no later than 180 days after the alleged discriminatory action (12-168, Chapter 50, Sections 1 and 2, as adopted effective February 6, 2008, at ME ¶20-2600).

Veterans’ Preference in Public Employment Law

Topic added. In making appointments to and retention in any position on an open competitive basis in the classified service, preference shall be given to veterans of the Armed Forces of the United States, who have been honorably separated, or to their wives, husbands, widows, widowers, mothers or fathers. Title 5, Part 17-A, Chapter 372, Subchapter 2, Article 1, Section 7054. ¶20-21,750.01.

Wage Payment Law

An employer's policy of withholding unused accrued leave from employees if they failed to give two weeks' notice of resignation violated Maryland's Wage Payment and Collection Law, ruled the Maryland Court of Special Appeals. The unused accrued leave was a "fringe benefit" and therefore a "wage" as defined under the WPCL, concluded the court. An employee's right to compensation vests when the employee does everything required to earn the wages, observed the court. In this instance, the employees "earned" their accrued leave in exchange for their work. The employer's policy denied its employees compensation for the leave they worked for and was therefore invalid (Catapult Technology, Ltd v Wolfe, MdCtSpApp, 155 LC ¶60,550, at MD ¶21-1200).

Criminal Background Checks E.O. 495

It shall be the policy of the Executive Department with respect to employment decisions that a criminal background check will only occur, and its results will only be considered, in those instances where a current or prospective employee shall have been deemed otherwise qualified and the content of a criminal record is relevant to the duties and qualifications of the position in question. Such instances will include, without limitation, those in which a criminal conviction creates a statutory disqualification for the position, or the position requires interaction with vulnerable populations and a criminal background check is necessary to ensure that the applicant does not pose a public safety risk.

In implementing this policy, the employer should consider the nature and circumstances of any past criminal conviction; the date of the offense; the sentence imposed and the length of any period of incarceration; any reasonably available information concerning compliance with conditions of parole or probation, including orders of no contact with victims and witnesses; the individual's conduct and experience in the time since the offense, including, but not limited to, educational or professional certifications obtained since the time of the offense or other evidence of rehabilitation; and the relevance of the conviction to the duties and qualifications of the position in question. Executive Order 495, signed Jan. 11, 2008, effective immediately. ¶22-23,600.51.

Preemployment Inquiries Law

It shall be the policy of the Executive Department with respect to employment decisions that a criminal background check will only occur, and its results will only be considered, in those instances where a current or prospective employee shall have been deemed otherwise qualified and the content of a criminal record is relevant to the duties and qualifications of the position in question. Such instances will include, without limitation, those in which a criminal conviction creates a statutory disqualification for the position, or the position requires interaction with vulnerable populations and a criminal background check is necessary to ensure that the applicant does not pose a public safety risk (Executive Order No. 495, at MA ¶22-9000).

Veterans’ Preference in Public Employment Law

Topic added. Veterans, widows or widowers of veterans, disabled veterans and spouses of disabled veterans are entitled to preference in public employment. Part I, Title IV, Chapter 31, Sections 26 and 28. ¶22-21,750.01 and ¶22-21,750.02.

Veterans’ Preference in Public Employment Law

Topic added. In every public department and upon the public works of the state and of every county and municipal corporation thereof honorably discharged veterans shall be preferred for appointment and employment. Chapter 35, Sections 35.401 through 35.403. ¶23-21,750.01 through ¶23-21,750.04.

Veterans’ Preference in Public Employment Law

Topic added. The state personnel board shall grant each veteran or disabled veterans who are fully qualified preference over other applicants for an initial or promotional appointment. Title 25, Chapter 9, Sections 25-9-301 through 25-9-305. ¶25-21,750.01 through ¶23-21,750.03.

Minimum Wage Law

The minimum wage and overtime requirement enacted by the passage of Proposition B, a ballot initiative approved by voters on November 7, 2006, did not apply to local governments, according to a Missouri court of appeals. Before the passage of the ballot initiative, the state's minimum wage law did not apply to local governments, and the initiative made no mention of extending minimum wage coverage to local governments. Consequently, local governments must meet the definition of  "person" to be covered by the new law, and the "person" category most adaptable to local governments would be that of  "corporation." However, Missouri courts have consistently found that the term "corporation" does not encompass municipal corporations (Wright v State of Missouri, MoCtApp, 155 LC ¶60,549, at MO ¶26-1000).

Recordkeeping/Posters Law

The state's minimum wage posters have been updated (MO ¶26-9900).

Veterans’ Preference in Public Employment Law

Topic added. In any competitive examination given for the purpose of establishing a register of eligibles, veterans, disabled veterans, surviving spouses and spouses of disabled veterans shall be given preference in appointment and examination for public employment. Title 4, Chapter 36, Section 36.220. ¶26-21,750.01.

Veterans’ Preference in Public Employment Law

Topic added. A preference shall be given to veterans and disabled veterans seeking employment with the State of Nebraska or its governmental subdivisions. Chapter 48, Article 2, Sections 48-225 through 48-231. ¶28-21,750.01 through ¶28-21,750.07.

Veterans, widows or widowers of veterans, and disabled veterans are entitled to preference in public employment. Title 23, Chapter 284, Section 284.260. ¶29-21,750.01.

Minimum Wage Law

The federal Fair Labor Standards Act did not preempt a class action suit filed by club dancers for unpaid minimum wages due under Nevada's wage and hour law, the state’s supreme court held. Because Nevada's minimum wage law disallows a tip credit, it provides greater employee wage protection than afforded under the federal law, and thus is controlling. In addition, the state high court granted approval to substitute a new class representative for the current representative, who could not be located. The high court rejected the dance club's arguments that the proposed class representative was not similarly situated with other class members and that the statute of limitations barred her claim. Contrary to the opt-in principles of FLSA collective actions, class actions brought under Nevada rules of procedure toll the statute of limitations on all potential unnamed plaintiffs' claims, thus her claim was not time-barred (Jane Roe Dancer I-VII v Golden Coin, Ltd dba Girls of Glitter Gulch, NevSCt, January 31, 2008, at NV ¶29-1000).

Health Insurance Benefit Coverage Law

Group insurers and HMOs must now provide coverage for children's early intervention therapy services (Ch. 338 (S. 93), L. 2007, at NH ¶30-4000).

Workers' Compensation Law

The state has extended the reporting period for the workers' compensation compliance statement and now requires such statements to be maintained as a public record (Ch. 237 (S. 154), L. 2007, at NH ¶30-4300).

Health Insurance Benefit Coverage Law

The state will require group health insurers and HMOs to provide benefits for orthotic and prosthetic appliances (Ch. 345 (S. 502), L. 2006, enacted January 13, 2008, at NJ ¶31-4000).

Minimum Wage Law/Overtime Pay Law

New Jersey Governor Jon S. Corzine has signed an executive order creating the Governor's Advisory Commission on Construction Industry Independent Contractor Reform. The mission of the Advisory Commission is to develop recommendations for a comprehensive and strategic statewide approach to addressing the problem of employee misclassification in the construction industry and to ensuring contractor compliance with the Construction Industry Independent Contractor Act (Executive Order No. 96, February 19, 2008).

Preemployment Inquiries Law

The state has amended its criminal history record check law with respect to certain school workers (Ch. 82 (A. 515), L. 2006, at NJ ¶31-9000).

Religious Discrimination Law

The state has statutory provisions exempting from its cord blood donation law certain hospital workers who believe that blood transfer is contrary to the moral principles which their denomination considers to be an essential part of its beliefs and practices (Ch. 247 (A. 312), L. 2006, enacted January 4, 2008, effective April 3, 2008, at NJ ¶31-2900).

Unemployment Insurance Law

The state's temporary disability benefits law has been amended with respect to limitation of benefits in specified circumstances (Ch. 322 (A. 3022), L. 2006, enacted and effective January 13, 2008, at NJ ¶31-1700).

Maximum Hours Law

The state's labor law has been amended with respect to penalties for requiring more than eight hours of work for a day's labor under specified circumstances (A. 8582, L. 2007, effective May 8, 2008, at NY ¶33-1700).

Recordkeeping/Posters Law

The state's labor law has been amended with respect to employer recordkeeping provisions on public works contracts (A. 8582, L. 2007, effective May 8, 2008, at NY ¶33-9900).

Wage Payment Law

New York "dining cruise" operators violated state wage law by failing to remit to their waitstaff the money the operators collected as service charges, gratuities included within the ticket price, or automatic gratuities added at the time of ticket purchase, the state high court held. New York Labor Law Sec. 196-d, which forbids an employer from retaining any part of a gratuity or "any charge purported to be a gratuity" for an employee, applies not only to a voluntary gratuity or tip, as the cruise operator asserted, but also to a mandatory service charge that is held out to the customer as a substitute for a tip, the court concluded, using a "reasonable patron" standard for determining whether a banquet customer would understand a service charge was collected in lieu of a gratuity (Samiento v World Yacht, Inc, NYCtApp, February 14, 2008, at NY ¶33-1200).

Unemployment Insurance Law

The North Carolina 2008 taxable wage base is $18,600, up from $17,800 in 2007 (NC ¶34-1700).

Unemployment Insurance Law

For 2008, UI contribution rates in Ohio range from 0.5% to 6.7% for positive-balance employers, and from 6.9% to 9.2% for negative-balance employers. The mutualized rate for 2008 is 0.2%. New employers in the construction industry pay a rate of 5.8%, and all other new employers continue to pay a rate of 2.7% in 2008 (OH ¶36-1700).

Additionally, the law has been changed to provide that if a claimant has made contributions to Social Security and he or she is receiving a retirement benefit pursuant to the Social Security Act, the claimant's weekly benefit will not be reduced by the amount of that retirement payment (OH ¶36-1700).

Breastfeeding Rights in Employment Rule

Topic added. The Civil rights Division of the Bureau of Labor and Industries has adopted a final rule implementing statutory provisions requiring employers to provide rest periods to employees needing to express milk during work time to feed their infants. Chapter 839, Division 20, 839-020-0051, as adopted by BLI 33-2007, effective Jan. 1, 2008. ¶38-22,700.01.

Bureau of Labor Rules of Administrative Procedure

The Civil rights Division of the Bureau of Labor and Industries has amended its injured worker rules to conform Statutory changes allowing nurse practitioners authorized to provide compensable medical services under ORS 656.245 to determine whether injured worker is released to work. Chapter 839, Division 6, Sections 839-006-0105, 839-006-0130, 839-006-0135, 839-006-0150, as amended by BLI 43-2007, effective Jan. 1, 2008. ¶38-20,129.105, ¶38-20,129.130, ¶38-20,129.135, and ¶38-20,129.150.

In addition, rules were adopted to implement and clarify newly enacted statutory provisions making discrimination based on sexual orientation an unlawful practice under Chapter 659A (SB2) and add "domestic partner" to the rights and protections under the appropriate rules (HB2007). Chapter 839, Division 5, Sections 839-005-0016, 839-005-0021, 839-005-0026, 839-005-0030, as adopted and amended by BLI 35-2007, effective Jan. 1, 2008. ¶38-20,127.16, ¶38-20,127.21, ¶38-20,127.26 and ¶38-20,127.30.

Criminal Background Checks Rules

An in-home care agency must insure that a criminal background check has been conducted on all current employees. If the screening indicates that the employee has been convicted for crimes against an individual or property, the agency shall make a determination of the employee's fitness to provide care to clients. Chapter 333, Division 536, Section 333-536-0050, as amended by PH 14-
2007, effective Jan. 1, 2008. Para ¶38-23,650.31.

Family Medical Leave Rules

The Civil rights Division of the Bureau of Labor and Industries has amended its family and medical leave rules extending the definition of "family member'' to include the grandparent or grandchild of an employee.
Also, it amended the rule that makes it unlawful employment practice to retaliate or in any way discriminate against an individual with respect to hire or tenure or any other term or condition of employment because the individual has inquired about the provisions of Oregon's family medical leave law, submitted a request for family leave or invoked any provision of the law. Chapter 839, Division 9, Sections 839-009-0210, 839-009-0240, 839-009-0250, 839-009-0260, 839-009-0280, 839-009-0320, as amended by BLI 44-2007, effective Jan. 1, 2008. ¶38-22,500.01, ¶38-22,500.04, ¶38-22,500.05, ¶38-22,500.06, ¶38-22,500.08, and ¶38-22,500.12.

Leave for Victims of Certain Crimes Rules

Topic added. The Civil Rights Division of the Bureau of Labor and Industries has adopted rules implementing, defining and clarifying leave for victims of domestic violence, sexual assault or stalking and prohibits discrimination against employees using leave under the Oregon Victims of Certain Crimes Leave Act. Chapter 839, Division 9, Sections 839-009-0325 through 839-009-0365, as adopted by BLI 32-2007, effective Jan. 1, 2008. ¶38-21,100.11 through ¶38-21,200.01.

Preemployment Inquiries Law

The state will require an abuse and neglect registry screening for certain special advocacy volunteers and guardians ad litem (H. 1073, L. 2008, at SD ¶43-9000).

Recordkeeping/Posters Law

The state has enacted protections for social security numbers as part of the Credit Security Act of 2007 (Ch. 170 (H. 200), L. 2007, at TN ¶44-9900).

Also, the state has updated its workers' comp poster (TN ¶44-9900).

Criminal Background Checks Law

The provision relating to the inspection of court records were amended and renumbered. Title 78A, Chapter 6, Section 78A-6-209, as amended and renumbered by H.B. 78, L. 2008, effective Feb. 7, 2008. ¶46-23,601.31.

Statute of Limitations Law

The statute of limitations for action brought in Utah under 42 U.S.C. 1983 is two years. Title 78B, Chapter 2, Sections 78B-2-102 and 78B-2-304, and reads as last amended and renumbered by H.B. 78, L. 2008, effective Feb. 7, 2008. ¶46-20,026.01 and ¶46-20,026.02.

No Updates as of February 29, 2008