State Law Changes

January 30, 2008 Update

Criminal Background Checks Rules

Department of Health and Social Services may grant a variance for an individual convicted of a permanent barrier crime or for an individual whose name appears on the centralized registry. The request is subject to the review criteria set out in 7 AAC 10.935(c)(10) and additional consideration under 7 AAC 10.935(e) by the director of the department office responsible for the licensing, certification, approval, or finding of eligibility to receive payments for the entity or provider seeking the variance. Title 7, Chapter 10, Article 3, Sections 7 ACC 10.930, 7 ACC 10.935 and 7 ACC 10.955, as amended effective Feb. 13, 2008. ¶2-23,650.27, ¶2-23,650.28 and ¶2-23,650.32.

Unemployment Insurance Law

Contribution rates for 2008 range from 1.0% to 5.4% for eligible employers, based on payroll decline experience. For 2008, the average benefit cost rate used to determine the rates is 0.019979, the trust fund reserve rate is 0.33014, and there is a -0.001% trust fund solvency adjustment. The employee tax rate for 2008 is 0.50%. For 2008, the taxable wage base in Alaska is $31,300. This is $1,200 higher than the taxable wage base of $30,100 that was applicable in 2007 (AK ¶2-1700).

Preemployment Inquiries Law

Arizona's county attorneys have agreed to postpone enforcement of the state's employer sanctions law until March 1, 2008, under an agreement reached between the parties on January 16. Signed in July 2007, the Legal Arizona Workers Act, which went into effect January 1, imposes penalties on employers who intentionally or knowingly employ undocumented workers. The 15 county attorneys previously agreed not to bring any prosecutions against employers until February 2008, but will wait until US District Court Judge Neil V. Wake's ruling on a coalition of business groups and immigration rights advocates (plaintiffs') motion to permanently bar enforcement of the law. A hearing on the plaintiffs' motion began January 16. Media reports indicate that Wake will make his ruling by early February (Arizona Contractors Ass'n v Candelaria (Arizona Contractors II), DAriz, Nos CV07-02496-PHX-NVW & No CV 07-02518-PHX-NVW).

Under the Act, knowingly or intentionally employing undocumented workers will cause the employer's business licenses to be suspended. Licenses can be suspended for 10 days or longer for a first offense. A second offense can result in the "business death penalty" - permanent revocation of an employer's license to do business in the state of Arizona. Employers are required to check the legal status of their new hires using E-Verify, a voluntary Internet-based system operated by the Department of Homeland Security in partnership with the Social Security Administration. On December 21, 2007, Judge Wake denied the plaintiffs' request for a temporary restraining order. Later that day, the Ninth Circuit Court of Appeals also denied a request by the plaintiffs to prevent the law from taking effect. While the parties await Wake's decision, in her January 14, State of the State Address, Arizona Governor Janet Napolitano (D) urged the Arizona State Legislature to fix what she deemed "flaws" in the Legal Arizona Workers Act, including adding an antidiscrimination provision to the law (AZ ¶3-9000).

Recordkeeping/Posters Law

The state has updated its minimum wage posters (English and Spanish) and its workers' comp poster. The silica safety poster has been added (AZ ¶3-9900).

Disability Law

A qualified individual with a disability who smoked marijuana while off-duty could not assert a disability discrimination claim under California’s Fair Employment and Housing Act, the state supreme court ruled. The employee’s physician prescribed marijuana for relief of chronic pain pursuant to the state’s Compassionate Use Act, which provides a defense to criminal prosecution for prescribed medical use of the drug. After the employee was discharged for testing positive in a preemployment drug test, he filed suit, alleging the employer discharged him based on his disability and failed to provide a reasonable accommodation. "The operative provisions of the Compassionate Use Act do not speak to employment law," the high court wrote. "Under California law, an employer may require preemployment drug tests and take illegal drug use into consideration in making employment decisions." Nor could the employee assert a claim for wrongful termination in violation of public policy, as nothing in the Act suggests that voters intended to articulate "a fundamental public policy requiring employers to accommodate marijuana use by employees," the majority explained (Ross v Ragingwire Telecommunications, Inc, CalSCt, January 24, 2008, at CA ¶5-2600).

Minimum Wage Law

Los Angeles' Airport Hospitality Enhancement Zone Ordinance, which sets living wage requirements of at least $9.39 per hour ($10.64 per hour if no health benefits are provided) for certain hotel workers employed within the business improvement district abutting Los Angeles International Airport, was upheld by a state appeals court over a challenge by hotel operators. The ordinance was sufficiently distinct from an earlier measure - which was repealed after opponents successfully secured a voter referendum on it - in that it directly addresses objections raised to the first ordinance by guaranteeing the affected hotels certain economic benefits that mitigate the financial burden of the wage provisions (Rubalcava v Martinez, CalCtApp, December 27, 2007, at CA ¶5-1000).

Recordkeeping/Posters Law

The state has updated its minimum wage poster (CO ¶6-9900).

Unemployment Insurance Law

An individual will not be ineligible for benefits if he or she is separated from employment in order to accompany a spouse who is on active duty with the armed forces of the United States, and is required to relocate. This exception applies to separations that occur between July 1, 2007, and June 30, 2008 (CT ¶7-1700).

Human Rights Law

The District of Columbia Human Rights Act has been amended to include breastfeeding as part of the definition of discrimination on the basis of sex. In addition, a woman has the right to breastfeed in any location where she has the right to be with her child, public or private. The law also requires employers to provide reasonable daily unpaid break-time, and a sanitary location so that breastfeeding mothers are able to express breast milk for their children. Division 1, Title 2, Chapter 14, Subchapter I, Sections 2-1401.05 and 2-1402.81 through 2-1402.83, as amended and enacted by B. 133 (Act No. 132, Law No. 58), L. 2007, effective Dec. 11, 2007. ¶9-20,025.05 and ¶9-20,025.36 through ¶9-20,025.38.

Recordkeeping/Posters Law

The state has updated its minimum wage posters (English and Spanish versions) (FL ¶10-9900).

Unemployment Insurance Law

For 2008, the minimum rate is 0.10%, and the maximum rate is 5.4%, except that employers participating in the short-time compensation program will be subject to a maximum rate of 6.4%. New employers pay 2.7% in 2008. The noncharge adjustment ratio is .0025, the excess payment ratio is .0012, the gross benefit ratio is .0105, the multiplier is .3524, and the final adjustment ratio is .0009. Note that the fund balance adjustment factor is not required in 2008 because the balance of the fund was greater than 3.7% of the state's one taxable payroll (FL ¶10-1700).

No Updates as of January 30, 2008

Unemployment Insurance Law

For 2008, the taxable wage base in Idaho is $32,200. This amount is $2,000 higher than the
2007 taxable wage base of $30,200 (ID ¶13-1700).

Preemployment Inquiries Law

The Right to Privacy in the Workplace Act (H. 1744, L. 2007, enacted August 13, 2007), an employee eligibility verification law, was to have taken effect January 1, 2008. However, the state has agreed not to enforce the law, which would effectively forbid Illinois employers from enrolling in the federal government's E-Verify Program, until the U.S. Department of Homeland Security's lawsuit against the state (United States of America v State of Illinois, CDIll, No 07-3261) is resolved (IL ¶14-9000).

Unemployment Insurance Law

The taxable wage base in Louisiana remains at $7,000 for 2008 (LA ¶19-1700).

Employment of Aliens E.O. 08-01

Topic added. Governor Tim Pawlenty has signed an executive order directing the Minnesota Department of Employee Relations, the Department of Administration and the Department of Employment and Economic Development to verify electronically the employment eligibility of all new state employees and contractors (who have contracts in excess of $50,000) doing business in Minnesota as well as recipients of state business incentives. Procedures will also be implemented so that state contractors who knowingly employ undocumented workers in violation of federal immigration laws will have their contracts with the state of Minnesota terminated or be debarred as vendors in the state. Executive Order 08-01, signed January 7, 2008, at ¶24-24,050.

Fair Employment Practices Law

Governor Tim Pawlenty has signed an executive order directing the Minnesota Department of Employee Relations, the Department of Administration and the Department of Employment and Economic Development to verify electronically the employment eligibility of all new state employees and contractors (who have contracts in excess of $50,000) doing business in Minnesota as well as recipients of state business incentives. Procedures will also be implemented so that state contractors who knowingly employ undocumented workers in violation of federal immigration laws will have their contracts with the state of Minnesota terminated or be debarred as vendors in the state (Executive Order 08-01, January 7, 2008, at MN ¶24-2500).

Unemployment Insurance Law

The taxable wage base in Minnesota for 2008 is $25,000, up $1,000 over the 2007 taxable wage base of $24,000 (MN ¶24-1700).

Unemployment Insurance Law

For 2008, UI contribution rates in Montana will continue to follow Schedule I; however, note that Schedule I has been modified from previous years. The rates for positive-ratio employers now range from 0.13% to 1.8%, and the rates for negative-ratio employers range from 3.3% to 6.5%. These rates include the 0.13% Administrative Fund Tax (AFT) in effect for 2008 for Classes 1 and 2. The AFT for Classes 3 through 10 is 0.18.%. New employers, who are rated by industry classification, pay the following rates, which include the 0.13% AFT, for 2008: agriculture, forestry, hunting, and fishing employers, 2.28%; mining employers, 1.78%; construction employers, 2.78%; manufacturing employers, 1.48%; utilities, transportation, and warehousing employers, 1.38%; wholesale trade employers, 1.18%; retail trade employers, 1.18%; finance, insurance, and real estate employers, 1.18%; services employers, 1.38%; and unclassified employers, 2.78% (MT ¶27-1700).

Unemployment Insurance Law

Employers will once again be benefiting from a 1.0% fund balance reduction or discount from their unemployment insurance contribution rates for all four quarters in 2008. Rates for positive-rated employers range from a total of 0.1% to 2.7% (minus the fund balance reduction of 1.0% with a minimum rate of 0.1%). Rates for negative-rated employers range from 2.8% to 6.5%. New employers pay 1.7% (NH ¶30-1700).

Fair Employment Practices Law

The New Jersey Law Against Discrimination has been amended to make discrimination against employees because of religious practices unlawful. The amendment took effect January 13, 2008 (A. 3451, L. 2006, enacted January 13, 2008, at NJ ¶31-2500).

Law Against Discrimination

Effective January 14, 2008, it will be unlawful for public and private employers to impose upon a person as a condition of obtaining or retaining employment, including opportunities for promotion, advancement or transfers, any terms or conditions that would require a person to violate or forego a sincerely held religious practice or religious observance, including but not limited to the observance of any particular day or days or any portion thereof as a Sabbath or other holy day in accordance with the requirements of the religion or religious belief, unless, it is undue hardship on the conduct of the employer's business.

Under A.B. 3451, L. 2008, workers who take time off for religious reasons would be expected to make up the time or work or take paid leave other than sick leave. Otherwise, an employer could treat the time off as unpaid leave. In addition, an accommodation is considered an undue hardship under the law if it will lead to the employee's inability to perform the essential functions of his or her position. Title 10, Chapter 5, Sections 10:5-5 and 10:5-12, as amended by A.B. 3451, L. 2008, effective Jan. 14, 2008. ¶31-20,025.05 and ¶31-20,025.12.

Military and Emergency Services Leave Law

The state has enacted a law providing employment protections for employees on military leave in time of war or emergency. Municipalities and school districts are included. The law also provides for other duties if an employer is unable to restore a person to a previous position, and prohibits any qualified person from being laid off (Ch. 239 (A. 3622), L. 2006, enacted and effective January 3, 2008, at NJ ¶31-7200).

Violence in the Workplace Law

The Violence Prevention in Health Care Facilities Act requires certain health care entities to establish violence prevention programs to protect health care workers. The law includes a general or special hospital or nursing home and credible verbal threats of assault or harm (Ch. 236 (A. 3027), L. 2006, enacted and effective January 3, 2008, at NJ ¶31-3300).

Minimum Wage Law

The state's minimum wage law has been amended to exempt employees of the state or a political subdivision of the state from certain provisions of the law (Ch. 2 (S. 66), L. 2008, at NM ¶32-1000).

The City of Santa Fe has amended its "living wage" law to make more workers eligible to receive the $9.50 hourly wage. Prior to January 1, 2008, only businesses with 25 or more employees were required to comply with the wage ordinance (Ordinance No. 2007-43, at NM ¶32-1000).

Preemployment Inquiries Law

The state has enacted a law requiring employees of a designated contract market or derivatives clearing organization involved in the commodities market to be fingerprinted (Ch. 533 (S. 4056), L. 2007, at NY ¶33-9000).

Criminal Background Checks Rules

Child care providers shall submit the following to their employer no later than five business days after beginning work: (1) a certified criminal history check from the Clerk of Superior Court's office in the county where the individual resides; (2) a signed Authority for Release of Information using the form provided by the Division; (3) a fingerprint card using SBI form FD-258; and (4) a signed statement declaring under penalty of perjury if he or she has been convicted of a crime other than a minor traffic violation. Title 10A, Chapter 9, Sec. 9.2702, as amended effective Nov. 1, 2007. ¶34-23,650.01.

A nonlicensed home provider and household members over 15 years old, including family members and non-family members who use the home on a permanent or temporary basis as their primary residence, shall submit the following to the local purchasing agency: (1) a certified criminal history check from the Clerk of Superior Court's office in the county where the individual resides; (2) a signed Authority for Release of Information using the form provided by the Division; (3) a fingerprint card using SBI form FD-258; and (4) a signed statement declaring under penalty of perjury if he or she has been convicted of a crime other than a minor traffic violation. Title 10A, Chapter 9, Sec. 9.2704, as amended effective Dec. 1, 2007. ¶34-23,650.02.

Family and Medical Leave-Public Employees Rule

The State of North Carolina shall follow the Family and Medical Leave Act of 1993, with the provision that the method used to determine the 12-month period shall be the 12-month period measured forward from the date any employee's family and medical leave begins. Title 25, Chapter 1, Subchapter 1E, Sec. .1401, as amended effective Dec. 1, 2007. ¶34-22,500.01.

Discrimination on Public Works Contracts Law

In the hiring of employees for the performance of work under public works contracts, no contractor or subcontractor, by reason of military status shall discriminate against any citizen of this state in the employment of a person qualified and available to perform the work to which the contract relates. Title 1, Chapter 125, Sections 125.111 and 153.591, as amended by H.B. 372, L. 2007, effective March 24, 2008. ¶36-20,026.01, ¶36-20,026.03 and ¶36-20,026.04.

Fair Employment Practices Law

Public and private employers are prohibited to discharge without just cause, to refuse to hire, or otherwise to discriminate against a person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment on the basis of military status. Title 41, Chapter 4112, Sections 4112.01, 4112.02, 4112.023, 4112.04, 4112.05, and 4112.08, as amended by H.B. 372, L. 2007, effective March 24, 2008. ¶36-20,025.01, ¶36-20,025.02, ¶36-20,025.023, ¶36-20,025.04, ¶36-20,025.05 and ¶36-20,025.08.

Effective March 24, 2008, employers may not discharge without just cause, refuse to hire, or otherwise discriminate against a person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment, on the basis of military status (Ch. 37 (H. 372), L. 2007, at OH ¶36-2500).

Recordkeeping/Posters Law

The state has updated its minimum wage poster (OH ¶36-9900).

Workers' Compensation Law

At-will employees who are terminated for nonretaliatory reasons while receiving workers' compensation benefits have no common law wrongful discharge claim, the Ohio supreme court ruled, limiting a precedential 2003 ruling that had been interpreted as creating an exception to the employment-at-will doctrine for employees who are terminated while receiving workers' comp. Noting that its "17-year history with the tort of ‘wrongful discharge in violation of public policy" has been filled with fits and starts," the court held that the state's Workers' Compensation Act provides the exclusive remedy for employees claiming termination in violation of rights conferred by the Act. Writing in dissent, Justice Moyer noted that the Act's anti-retaliation provision does not provide a remedy to employees who are discharged for absenteeism that is directly related to the employee's temporary total disability. "Dismissing employees under such circumstances would jeopardize the clear public policy against that action, as it would allow an employer to force an employee to choose between the enjoyment of [workers' compensation] benefits to which he or she is entitled and the loss of employment," Moyer wrote (Bickers v Western & Southern Life Insurance Co, OhioSCt, December 20, 2007, at OH ¶36-4300).

Criminal Background Checks Rule

Employees, contractors and volunteers of the Department of Energy are required to undergo a criminal background check and submit fingerprints as a condition of employment. Chapter 330, Division 7, Sections 330-007-0200 through 330-007-0330, as adopted by DOE 5-2007, effective Dec. 13, 2007. ¶38-23,652.01 through ¶38-23,652.14.

Recordkeeping/Posters Law

The state has updated its minimum wage posters (English and Spanish versions) (OR ¶38-9900).

Criminal Background Checks Rules

In order to obtain the national criminal history record information, the adopted new rules require certain open-enrollment charter school employees, noncertified employees hired after January 1, 2008, and substitute teachers to submit fingerprint and other identification information to the Department of Public Safety (DPS) in the form the DPS requires so that these persons' criminal history record information can be entered in the DPS Criminal History Clearinghouse. Title 19, Part 2, Chapter 153, Subchapter DD, Sections 153.1101 through 153.1115, as adopted effective Dec. 30, 2007. ¶45-23,650.01 through ¶45-23,650.08.

Affirmative Action in State Employment Rule

State agencies are required to include the following in their policy on sexual harassment: (1) indicate who is covered by the policy; (2) the definition of sexual harassment as defined by the Equal Employment Opportunity Commission; (3) identify how and to whom employees or individuals may raise concerns or file complaints. The policy should allow multiple avenues for an employee or individual to raise complaints or concerns and should clearly identify the positions or entities charged with receiving these complaints; and (4) advise all individuals covered by the policy that the employer is under a legal obligation to respond to allegations concerning a violation of the policy. Title 357, Chapter 357-25, Section 357-25-027, as adopted effective Dec. 11, 2007. ¶50-23,451.051.

Criminal Background Checks Rules

The rules adopted by the Department of Social and Health services regarding background checks of employees who have unsupervised access to children and persons with developmental disabilities were amended. Title 388, Chapter 388-06, Section 388-06-0010, as amended effective Nov. 16, 2007. ¶50-23,650.21.

The Department of Social and Health Services must conduct a background check on all employees and applicants for a covered position. "Covered position" is one in which a person will or may have unsupervised access to vulnerable adults, juveniles or children. Title 388, Chapter 388-06, Sections 388-06-0600 through 388-06-0640, as adopted effective Nov. 16, 2007. ¶50-23,651.01 through ¶50-23,651.09.

Recordkeeping/Posters Law

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