State Law Changes

January 7, 2009 Update

No Updates as of January 7, 2009

Criminal Background Checks Rules

Long term care facilities shall not knowingly employ or hire a person who has been found guilty or has pled guilty or nolo contendere to certain criminal offenses in any court in the State of Arkansas or any similar offense by a court in another state or of any similar offense by a federal court. 016.06.006, Sections 100 through 800, as amended effective Aug. 1, 2008. ¶4-23,651.01, ¶4-23,651.02, ¶4-23,651.03, ¶4-23,651.04, ¶4-23,651.05, ¶4-23,651.06, ¶4-23,651.07, and ¶4-23,651.08.

Minimum Wage Law

A waitress could not recover punitive damages against her former employer for violations of the California Labor Code's meal and rest break, minimum wage, and pay stub provisions, a California appeals court ruled. Under the “new right-exclusive remedy” rule, because the relevant Labor Code provisions created new rights that did not previously exist in the common law, those provisions provided the exclusive remedy for the asserted violations. But even if the Labor Code did not provide the exclusive remedy, punitive damages were unavailable, the appeals court held, because the Labor Code protections implicated in the case arise only from the employment contract, and punitive damages are ordinarily recoverable only in an action for the breach of an obligation not arising from contract. Accordingly, the appeals court reversed a jury award of $195,000 in punitive damages (Brewer v Premier Golf Properties, CalAppCt, December 3, 2008), ( CA ¶5-1000).

Minimum Wage Law

The Colorado Department of Labor and Employment has adopted Minimum Wage Order Number 25, effective January 1, 2009. Colorado Minimum Wage Order Number 25 establishes a new state minimum wage rate of $7.28, which is adjusted for inflation in accordance with Article XVIII, Section 15, of the Colorado Constitution (CO ¶6-1000).

Recordkeeping/Posters Law

The state's minimum wage posters (English and Spanish versions) have been updated (CO ¶6-9900).

Fair Employment Practices Law

An African-American job applicant who alleged that a newspaper failed to hire him based on his criminal conviction record did not have an employment discrimination claim under the Delaware Discrimination in Employment Act (DDEA), which prohibits discrimination with respect to the protected classes of race, marital status, genetic information, color, age, religion, sex and national origin, because he could not demonstrate that having a criminal record placed him within a protected class under the Act. The applicant also did not have a false advertising claim against the newspaper, which advertised itself as an “equal opportunity employer,” because there was no evidence that the newspaper discriminated against him based on his membership in a protected class (Cannon v News Journal, (DelSCt 2008) 91 EPD ¶43,379, at DE ¶8-2500).

No Updates as of January 7, 2009

Health Insurance Benefit Coverage Law

Under a new law enacted December 12, 2008, a group or individual policy of accident and health insurance or managed care plan that is amended, delivered, issued or renewed after December 12 must provide individuals under 21 years of age coverage for the diagnosis of autism spectrum disorders and for the treatment of autism spectrum disorders to the extent that such diagnosis and treatment is not already covered by the policy or plan. Coverage of autism diagnosis and treatment is subject to a maximum benefit of $36,000 per year, which, after December 30, 2009, is to be adjusted annually for inflation. However, such coverage is not to be subject to any limits on the number of visits to an autism service provider (Public Act 95-1005 (S. 934), L. 2007, at IL ¶14-4000).

COBRA Law

Kansas has made several changes to its continuation coverage provisions. Continuation coverage to eligible employees or their covered dependents must be provided for 18 months, not for six months as under prior law. Employers must provide the employee and any covered dependents with reasonable notice of the right to continuation coverage. Premiums for continuation coverage must be paid to the employer, and not to the insurer as under prior law. Conforming amendments were made to conversion coverage provisions to reflect the change in the period of continuation coverage from six months to 18 months (Ch. 164 (S. 81), L. 2007, effective July 1, 2008, at KS ¶17-4200).

No Updates as of January 7, 2009

No Updates as of January 7, 2009

Fair Employment Practices Law

Massachusetts law appears to substantially restrict the ability of employers to enforce workplace personal appearance and grooming policies because it requires employers to reasonably accommodate their employees' religious beliefs, unless the accommodation would cause an undue hardship. Jiffy Lube maintained a policy requiring all employees with customer contact to be clean-shaven and to keep their hair “clean, combed and neatly trimmed.” An employee informed his manager that his Rastafarian religion prohibited him from shaving or cutting his hair. The company responded that it was not required to make any exceptions to its grooming policy and reassigned the employee to a less desirable position that did not involve customer contact; he still received merit increases. Because Jiffy Lube never engaged in the interactive process with the practicing Rastafarian employee to address his religious needs, it was the company's burden to prove conclusively that no other conceivable accommodation was possible without imposing an undue hardship, held the Massachusetts Supreme Court. On that record, the company did not meet its burden, as it did not have specific proof that an exception to its policy would cause harm to its public image (Brown v F.L. Roberts & Co, December 2, 2008), MA ¶22-2500).

No Updates as of January 7, 2009

No Updates as of January 7, 2009

Marital Status Discrimination Law

A hearing examiner correctly awarded back pay to a resident manager of a Missoula apartment complex who claimed he was discriminated against based on marital status, the Montana supreme court ruled, affirming a district court. After the employer became concerned about the performance of the manager's wife in her role as part of the complex's property management team, a letter was abruptly sent to the couple informing them of their termination, but not alleging any wrongdoing by the husband. The husband then brought an action for discrimination based on marital status, alleging that he was fired not due to his own poor performance, but solely because his wife's job performance dissatisfied his employer. Despite an appeal by the employer who claimed that the manager failed to properly mitigate the damages, the court declined to reweigh the evidence, noting that the record supports the hearing examiner's finding that the manager suffered harm as a result of discrimination (Mercer v McGee, MontSCt, November 13, 2008, at MT ¶27-3200).

Wage Payment Law

Nevada wage payment statute NRS 608.011, which governs employment compensation, wages and hours, does not contain specific language that extends personal liability for unpaid wages to individual managers, held the Nevada Supreme Court. Chapter 608 makes an employer responsible for the payment of employee wages and defines “employer” to include <quote>every person having control or custody of any employment, place of employment or any employee.” In a question certified from the Ninth Circuit, the state supreme court stressed that the definition of "employer was "ambiguous" and the Nevada legislature had not unequivocally indicated its intent to equate managers with "employers" under the statute, thus forcing the conclusion that individual management-level corporate employees cannot be held liable (Boucher v Shaw, November 26, 2008) (NV ¶29-1200).

Preemployment Inquiries Law

Governor Jon S. Corzine signed legislation on December 15, 2008, that requires, as a condition of securing or maintaining approval by the Department of Children and Families as an adoption agency, the administrator of an agency ensure that a criminal history record background check is conducted on each staff member of the agency. A refusal to consent to, or cooperate in, such criminal background checks could result in the Department suspending, denying, revoking or refusing to renew the agency's approval as an adoption agency. The new law takes effect 180 days after enactment (The State of New Jersey, Office of the Governor, Press Release, December 15, 2008; Ch. 114 (S.B. 111), L. 2008).

Minimum Wage Law

Santa Fe Mayor David Cross has announced that the minimum wage in Santa Fe will increase from $9.50 to $9.92 effective January 1, 2009, as called for in the City of Santa Fe’s Living Wage Ordinance. The Ordinance states that “Beginning Jan. 1, 2009, and each year thereafter, the minimum wage shall be adjusted upward by an amount corresponding to the previous year's increase, if any, in the consumer price index for the western region for urban wage earners and clerical workers.” October 2008 numbers announced by the Department of Labor show an annual change of 4.457 percent, an increase of $0.423. The City of Santa Fe used the 12-month average from October to October as the figure for the previous year in order to give businesses and employees the most stable, up-to-date number while also providing enough time to plan for the upcoming year (City of Santa Fe News Release), November 24, 2009, at NM ¶32-1000).

Criminal Background Checks Rules

Every residential health care facility, any certified home health agency, licensed home care services agency or long term home health care program certified, licensed or authorized, to provide services to patients, residents or clients is required to review of the criminal history record of certain prospective employees. Title 10, Chapter V, Subchapter A, Article 1, Part 402, Sections 402.1 through 402.10, as adopted effective Nov. 17, 2008. ¶33-23,651.01, ¶33-23,651.02, ¶33-23,651.03, ¶33-23,651.04, ¶33-23,651.05, ¶33-23,651.06, ¶33-23,651.07, ¶33-23,651.08, ¶33-23,651.09, and ¶33-23,651.10.

No Updates as of January 7, 2009

Human Rights Rules of Practice and Procedure—Topic added.

The North Dakota Labor Department has adopted rules of practice and procedure under the state’s human rights act. Article 46-04, Chapter 46-04-01, Sections 46-04-01-01 through 46-04-01-11, as adopted effective Oct. 1, 2008. ¶35-20,125.01.

No Updates as of January 7, 2009

No Updates as of January 7, 2009

Discrimination Because of Arrest Record—Topic added.

If a municipality or county has a personnel policy that places an employee on leave for any period of time immediately following any arrest of the employee, the municipality or county must restore back pay to the employee if the charges are dropped or the employee is found not guilty. Title 7, Chapter 51, Part 17, Section 7-51-1701, as enacted by Ch. 1105 (S.B. 4102), L. 2008, effective July 1, 2008. ¶44-23,500.01.

Family, Medical and Parental Leave Law

A federal district court in Washington held that an apprenticeship program was, in fact, the joint employer of a plumbing apprentice under the Family and Medical Leave Act and the Washington Family Leave Act (WFLA). The apprentice, who missed a few days of school and work to attend to his wife's medical issues, was subsequently dismissed from the program for poor attendance. He filed suit under the FMLA and state law, alleging violations of his rights. The apprenticeship program claimed that it was an educational institution, not an employer. Denying summary judgment, the court reasoned that it would be against the “totality of circumstances” to determine that all education institutions would be shielded from liability under the FMLA. When viewing the relationship, which revealed that the program controlled the length and location of apprentices' assignments as well their wage levels and benefits, the apprentice averaged 38.5 hours of work per week, but only had go to class 4.2 hours per week. Heavily weighting work verses class time distinguished the apprenticeship program from traditional educational institutions, found the court. As such, the program, which was similar to a staffing or placement agency, was the employer of the apprentice for purposes of the FMLA and the WFLA (Frees v UA Local 32 Plumbers & Steamfitters, November 21, 2008) (WA ¶49-7000).

Overtime Pay Law

Rules of the Department of Labor and Industries relating to overtime for truck drivers are amended effective November 21, 2008. These rules are amended in response to Bostain v. Food Express, Inc., 159 Wn.2d 700, 153 P.3d 846 (2007). In that case, the Washington State Supreme Court concluded that RCW 49.46.130(1) requires payment of overtime for hours worked over 40 a week for interstate driving, including hours spent working out of state. Washington rules previously required overtime pay for truck drivers only for the hours worked within the state of Washington (WA ¶49-1200).