State Law Changes

October 31, 2008 Update

No Updates as of October 31, 2008

Legal Interpretations, Immigration

While IRCA expressly preempts state or local laws imposing civil or criminal sanctions on employers in relation to employing undocumented workers, the Ninth Circuit held that the Legal Arizona Workers Act (LAWA), fell squarely within IRCA’s saving clause, which exempts “licensing and similar laws” from express preemption; in so holding, the circuit court also found that: (1) the LAWA did not violate employers’ due process rights; and (2) a requirement in the LAWA mandating all Arizona employers check the legal status of their new hires using the federal government’s voluntary E-Verify program was valid because such a requirement, “for which there is no substitute under development in either the state, federal, or private sectors, [is] not expressly or impliedly preempted by federal policy.” Chicanos Por La Causa, Inc v Napolitano (9thCir) 91 EPD ¶43,323.

Workers’ Compensation Law

Arizona law provides that the Industrial Commission may assess a monetary penalty of $25,000 against an employer for willful or repeat violations of Occupational Safety and Health Administration (OSHA) laws. This penalty is in addition to OSHA civil penalties for the specific violation. The new measure would allow the estate of a permanently disabled or deceased employee to receive the $25,000 penalty, not just the injured employee (S. 1125, L. 2008, at AZ ¶3-4300).

Additionally, Arizona has added remodeling and repair contractors to the list of employers required to provide workers' compensation insurance. Failure to secure compensation can result in a suspension of the contractor's license (S. 1417, L. 2008, at AZ ¶3-4300).

Jury Duty and Court Attendance Leave Law

Material on leave for crime victims has been added to the summary (AR ¶4-7100).

Health Insurance Benefit Coverage Law

The state has enacted a law providing that if a health plan or insurance policy covers a dependent child who is over 18 years of age and enrolled at a secondary or postsecondary educational institution, the plan or policy may not terminate that coverage if the child takes a medical leave of absence (Ch. 390 (S. 1168), L. 2007, enacted September 27, 2008, at CA ¶5-4000).

Also, the state has enacted a law requiring health care service plans and health insurers, on or after January 1, 2009, to provide human immunodeficiency virus (HIV) testing, regardless of whether the testing is related to a primary diagnosis (Ch. 631 (A. 1894), L. 2007, enacted September 30, 2008, at CA ¶5-4000).

Military and Emergency Services Leave Law

California has authorized the governor to extend certain military benefits by executive order by up to an additional 1,460 (formerly, 365) days. The new law applies to state employees who are members of the California National Guard or a United States military reserve organization, and who are ordered to active duty on and after September 11, 2001, as a result of the War on Terrorism. The benefits that may be extended are those detailed in Section 19775.18 of the Government Code (Ch. 592 (S. 1353), L. 2007, enacted September 30, 2008, at CA ¶5-7200).

Minimum Wage Law

Effective January 1, 2009, the San Francisco minimum wage rate will increase from $9.36 per hour to $9.79 per hour. All employers must pay the minimum wage rate to each employee who performs work in San Francisco (including temporary and part-time employees). The minimum wage requirement, set forth in the San Francisco Minimum Wage Ordinance, Chapter 12R of the San Francisco Administrative Code, applies to adult and minor employees who work two or more hours per week. Each year, the city adjusts the amount of the minimum wage based on increases in the regional consumer price index (http://www.sfgov.org/site/olse_index.asp?id=27605, at CA ¶5-1000).

Overtime Pay Law

California Governor Arnold Schwarzenegger has signed legislation amending overtime exemption requirements for employees in the computer software field by adding an annual salary limit (A. 10, L. 2007, enacted and effective September 30, 2008, at CA ¶5-1100).

Also, California's Department of Industrial Relations has announced the overtime exemption rates for computer software employees for 2009. In accordance with California Labor Code Section
515.5(a)(4), the California Division of Labor Statistics and Research has adjusted the computer software employee's minimum hourly rate of pay exemption from $36.00 to $37.94, the minimum monthly salary exemption from $6,250.00 to $6,587.50, and the minimum annual salary exemption from $75,000.00 to $79,050.00, effective January 1, 2009, reflecting the 5.4% increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers (State of California, Department of Industrial Relations, Division of Labor Statistics and Research, Memorandum, October 17, 2008, at CA ¶5-1100).

In addition, the overtime exemption rate for licensed physicians and surgeons for 2009 has also been announced. In accordance with California Labor Code Section 515.6(a), the Division has adjusted the licensed physicians and surgeons employee's minimum hourly rate of pay exemption from $65.59 to $69.13, effective January 1, 2009, reflecting the 5.4% increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers (State of California, Department of Industrial Relations, Division of Labor Statistics and Research, Memorandum, October 17, 2008, at CA ¶5-1100).

Preemployment Inquiries Law

The state has amended its criminal background check law with respect to In-Home Supportive Services (IHSS) providers (Ch. 2 (S. 692), L. 2007, enacted March 14, 2008, at CA ¶5-9000).

Additionally, consistent with the Americans with Disabilities Act of 1990 and California law, the collection of nonmedical or nonpsychological information of peace officers, in accordance with a thorough background investigation, may be deferred until after a conditional offer of employment is issued if the employer can demonstrate that the information could not reasonably have been collected prior to the offer (Ch. 437 (A. 2028), L. 2007, enacted September 27, 2008, at CA ¶5-9000).

Recordkeeping/Posters Law

The San Francisco minimum wage poster has been updated (CA ¶5-9900).

Violence in the Workplace Law

The state has amended its Penal Code with respect to electronic communication devices and stalking (Ch. 583 (A. 919), L. 2007, enacted September 29, 2008, at CA ¶5-3300).

Minimum Wage Law

As previously reported, the minimum wage rate in the state of Colorado will increase to $7.28 per hour, effective January 1, 2009. For tipped employees, the minimum wage will increase to $4.26 per hour (No more than $3.02 can be used to offset the minimum wage; $7.28 - $3.02 = $4.26) (Colorado Minimum Wage Fact Sheet, September 2008, at CO ¶6-1000).

In accordance with the Colorado Constitution, the state minimum wage is to be adjusted annually for inflation, based on the Consumer Price Index used for Colorado. The inflation adjustment is based on the Consumer Price Index for All Urban Consumers (CPI-U), All Items, for the Denver-Boulder-Greely combined metropolitan statistical area as published by the United States Bureau of Labor Statistics (BLS). The CPI-U increased 3.7 percent from the first half of 2007 to the first half of 2008, which results in the new minimum wage of $7.28 per hour effective January 1, 2009.

Workers’ Compensation Law

Colorado has provided for workers' compensation coverage to be paid for by higher education institutions using reserve officers and peace officers whether officers are compensated or on temporary assignment (H. 08-1106, L. 2008, at CO ¶6-4300).

Fair Employment Practices Law

The tolling period for filing suit under Connecticut's Fair Employment Practices law starts on the date one's employment actually ends, not on the date that an employee is given notice that he will be terminated, the Connecticut Supreme Court held, in a per curiam opinion affirming an appeals court ruling that the statute of limitations began to run on the last day that an employee worked. The lower court properly rejected the employer's assertion that a long-term employee's age bias suit was untimely because more than 180 days had elapsed since the date he first received notice that he was going to be terminated at the end of the calendar year. The state high court adopted the appeals court's conclusion that the filing period applicable to the statute at hand "commences upon actual cessation of employment, rather than notice thereof." Vollemans, Jr. v Town of Wallingford, ConnSCt, released October 21, 2008, at CT ¶7-2500).

Health Insurance Benefit Coverage Law

Effective January 1, 2009, a new Connecticut law will allow parents to cover certain unmarried dependents up to age 26, under a parent's individual or group health insurance plan (State of Connecticut Insurance Department News Release, August 5, 2008; P.A. 08-147 (H. 5158), L. 2008, at CT ¶7-4000).

Sexual Orientation Discrimination Law

“Gay persons are entitled to marry the otherwise qualified same sex partner of their choice,” a sharply divided Connecticut Supreme Court ruled last week, finding the state’s statutory prohibition against same sex marriage violates the Connecticut constitution. Applying heightened scrutiny to sexual orientation as a quasi-suspect classification for equal protection purposes, the high court found the state “has failed to provide sufficient justification for excluding same sex couples from the institution of marriage.” The trial court erred in determining that the distinction between civil unions and marriage in Connecticut was merely a difference in labels, the high court found. Rather, in consigning same sex couples to civil unions, the legislature had “relegated them to an inferior status, in essence, declaring them to be unworthy of the institution of marriage.” Three separate dissents rejected the majority’s application of intermediate scrutiny to sexual orientation as a classification (Kerrigan v Commissioner of Public Health, ConnSCt, released October 10, 2008, at CT ¶7-3100).

Workers' Compensation Law

Effective July 1, 2009, Connecticut will provide benefits for health impairment of uniformed municipal police and firefighters if certain conditions have been met. The health impairment must be associated with a cardiac emergency which includes cardiac arrest or myocardial infarction. The required conditions include employment beginning on or after July 1, 1996, while in training or engaged in duty at the site of an accident or fire or other public safety activity within the scope of employment, resulting in death or temporary or permanent total or partial disability (S. 5629, L. 2008, at CT ¶7-4300).

Minimum Wage Law

Florida's minimum wage will increase to $7.21 per hour effective January 1, 2009. The minimum wage for tipped employees will be $4.19 per hour. The current minimum wage in Florida is $6.79 per hour, as of January 1, 2008 (State of Florida, Agency for Workforce Innovation Agency News, October 15, 2008, at FL ¶10-1000).

On November 2, 2004, Florida voters approved a constitutional amendment that established a state minimum wage. Florida law requires the Agency for Workforce Innovation to calculate a new minimum wage each year and publish the new minimum wage on January 1. The increase for 2009 represents a 6.2 percent change in the federal Consumer Price Index for urban wage earners and clerical workers in the South Region for the 12-month period prior to September 1, 2008.

In deciding whether the federal or state minimum wage applies, federal law directs that businesses must pay the higher of the two. The Florida minimum wage will prevail over the federal rate until such time as the federal minimum wage becomes higher than the state rate. The federal minimum wage will increase to $7.25 on July 24, 2009. On this date, Florida employers must increase the minimum wage from $7.21 to $7.25.

Employers of "tipped employees" who meet eligibility requirements for the tip credit under the FLSA, may count tips actually received as wages under the FLSA. However, the employer must pay "tipped employees" a direct wage. The direct wage is calculated as equal to the minimum wage ($7.21) minus the 2003 tip credit ($3.02), or a direct hourly wage of $4.19 as of January 1, 2009.

Recordkeeping/Posters Law

The state's minimum wage posters have been updated (FL ¶10-9900).

Workers’ Compensation Law

Idaho has extended workers' compensation coverage to injured volunteer emergency responders defined to include firefighters, peace officers and certain personnel who serve as members of a legally organized law enforcement agency, fire department or licensed emergency medical services provider organization (S. 1444, L. 2008, at ID ¶13-4300).

Department of Human Rights Rules of Practice and Procedure

The word "handicap" has been replaced with the word "disability". Also, stylistic changes for consistency with other provisions in the Department's regulations were made. Title 44, Chapter X, Part 750, Section 750.5, 750.110, 750.150, and 750 Appendix A, as amended effective Sept. 23, 2008. ¶14-20,126.05, ¶14-20,126.110, ¶14-20,126.150 and ¶14-20,126.750.

Violence in the Workplace Law

The state has amended its stalking law (Ch. 137 (S. 414), L. 2007, enacted May 9, 2008, at KS ¶17-3300).

Health Insurance Benefit Coverage Law

The state’s Health Insurance Responsibility Disclosure (HIRD) forms have been updated (MA ¶22-4000).

Recordkeeping/Posters Law

The state’s part-time employee health insurance posters (English and Spanish) have been added (MA ¶22-9900).

Medical Leave-State Employees Law

When an employee's absence is due to a work-related injury for which the employee is receiving temporary disability benefits, the injured employee shall not use accrued personal and/or medical leave and receive workers' compensation benefits simultaneously if the combined receipt of both benefits results in the employee being paid, while absent due to the work-related injury, a total amount that exceeds one hundred percent (100%) of his wages earned in state employment at the time of injury. Title 25, Chapter 3, Section 25-3-95, as amended by Ch. 501 (S.B. 2977), L. 2008, effective July 1, 2008. ¶25-22,450.01.

Preemployment Inquiries Law

Adult foster care facilities have been added to the list of health care facilities that are required to perform criminal background checks of employees (Ch. 423 (H. 1086), L. 2008, at MS ¶25-9000).

Unemployment Insurance Law

The weekly benefit amount receivable by an eligible individual who is totally unemployed is 1/26 of his or her wages in that quarter of the base period in which wages were highest. The minimum weekly benefit amount is $30, and the maximum weekly benefit amount is computed as 60% of the average weekly wage of all workers, but not more than $230 for claims filed after July 1, 2008, and not more than $235 for claims filed after July 1, 2009 (MS ¶25-1700).

Minimum Wage Law

As previously reported, the Missouri Department of Labor and Industries has confirmed that the state minimum hourly wage will increase by 40 cents from $6.65 to $7.05 per hour effective January 1, 2009 (Missouri Department of Labor and Industrial Relations Labor News, October 3, 2008, at MO ¶26-1000).

“In August, the Department released preliminary data projecting an increase to Missouri's minimum wage by 40 cents,” said Todd Smith, Missouri Department of Labor and Industrial Relations (DOLIR) Director. “A review of the Consumer Price Index (CPI) for July 2008 confirms the Missouri minimum wage rate will increase to $7.05 effective January 1, 2009,” Smith added.

Missouri's minimum wage law requires the DOLIR Director to determine on September 30, 2008, any required adjustments to the minimum wage earnings based on changes in the CPI. The confirmed rate change is based on a 6.0 percent change in the CPI between July 2007 and July 2008. The minimum wage law applies to all businesses/employees that are not specifically exempted.

Preemployment Inquires Law

Missouri Governor Matt Blunt (R) signed a Memorandum of Agreement with Immigration and Customs Enforcement (ICE) creating a taskforce targeting illegal immigration in Missouri. Particular attention was given to employers who actively engage in the illegal employment of undocumented workers in Missouri.

“People from all over the globe come to our great nation to share our freedoms, and Missourians embrace the contributions that lawful immigration makes to our society,” said Blunt, who announced the taskforce on October 3, 2008. “Missourians do not condone lawbreaking, and that is why my administration will continue to take important, proactive steps to protect our state from unlawful immigration.”

The governor signed the Memorandum of Agreement with ICE, the Missouri State Highway Patrol (MSHP) and the Missouri Department of Public Safety creating the Gateway Taskforce. The taskforce is a partnership between ICE and the state of Missouri to more closely work together to fight the crimes and problems associated with illegal immigration. The taskforce will focus on illegal immigration and closely associated crimes like harboring illegal immigrants, transporting illegal immigrants, forced labor, human trafficking, identity theft, document fraud and bulk cash smuggling.

The Gateway Taskforce will include ICE agents and specially trained members of the Highway Patrol. Missouri Highway Patrol Troopers will work out of local ICE offices in Kansas City, Springfield and St. Louis. All 18 of the ICE-trained troopers will begin working one week per quarter in the ICE offices. The taskforce will utilize a co-located, integrated, collaborative approach to information sharing and operational efficiency that will better ensure the effective and efficient use of resources, expertise, and technologies. All MSHP members of the taskforce have received extensive training. All 18 members have a Title 19 cross-designation that allows trained personnel to perform certain customs officer functions under the supervision and direction of ICE personnel. In addition to Title-19 designation, 10 members of the taskforce have 287g cross-designation that allows trained troopers to perform certain immigration officer functions.

As previously reported, Governor Blunt signed the state’s comprehensive immigration reform bill (H. 1549) into law on July 7, 2008. Among its employment provisions, the law requires state agencies, local governments and businesses that contract with the state (in excess of $5,000) or that receive tax credits to participate in E-Verify, the voluntary web-based system operated by the Department of Homeland Security's U.S. Citizenship and Immigration Services bureau in partnership with the Social Security Administration that allows participating employers to electronically verify the employment eligibility of their newly hired employees. For a complete summary of this law, see MO ¶26-9000.

Minimum Wage Law

As previously reported, effective January 1, 2009, the Montana minimum wage will increase by
35 cents to $6.90 per hour (Montana Department of Labor and Industry, Commissioner's Office Press Release, October 1, 2009, at MT ¶27-1000).

Montana Code Annotated Section 39-3-409 requires an adjustment to the state minimum wage to be calculated no later than September 30 of each year based upon any increase in the U.S. City Average Consumer Price Index for All Urban Consumers for All Items (“CPI”) from August of the preceding year to August of the year in which the calculation is made. This amount is to be rounded to the nearest five cents.

Child Support Enforcement Law

Employers with more than 50 employees who have an employee with a child support order shall remit child support payments electronically (L.B. 620, L. 2007, enacted March 10, 2008, at NE ¶28-5500).

Criminal Background Checks Law

Every individual selected for employment with any health care facility shall submit to the employer a notarized criminal conviction record release authorization form, as provided by the division of state police, which authorizes the release of his or her criminal conviction record to the facility. This shall apply to any employee, including volunteers, whose scope of employment will involve direct contact with a client, client records or client tissue, body fluids, or other biological material. Title XI, Chapter 151, Sections 151:2-d and 151:3-c, as amended and repealed by Ch. 268 (S.B. 420), L. 2008, effective Jan. 1, 2009. ¶30-23,600.17 and ¶30-23,600.18.

Preemployment Inquiries Law

The state has enacted a law amending criminal background check requirements for certain health care facility workers (Ch. 268 (S. 420), L. 2007, enacted June 26, 2008, at NH ¶30-9000).

Equal Employment Opportunities in State Government Law

The Division of Equal Employment Opportunity and Affirmative Action was transferred to the Department of the Treasury. The division shall have all of the powers and shall exercise all of the functions and duties, subject to the supervision and control of the State Treasurer. Title 11A, Chapter 7, Sections, 11A:7-2, 11A:7-3, 11A:7-6, and 11A:7-9, as amended by Ch. 29 (A.B. 2803), L. 2008, effective June 30, 2008. ¶31-23,400.02, ¶31-23,400.03, ¶31-23,400.06 and ¶31-23,400.09.

Wage Payment Law

New Jersey recently became the latest state to update its regulations to reflect modern wage payment technologies. On October 6, 2008, the New Jersey Department of Labor and Workforce Development issued final regulations officially recognizing payroll cards as a permissible method of wage payment (N.J.A.C. 12:55-2.4, at NJ ¶31-1200).

Violence in the Workplace Law

Governor Bill Richardson has signed an executive order establishing preventative domestic violence, sexual assault, and stalking workplace policies in all New Mexico state agencies (Executive Order 2008-047, September 30, 2008, at NM ¶32-3300).

Discrimination Based on Arrest Records Law

Employers in the state of New York will be required to post a copy of the New York Correction Law relating to employment of persons with prior criminal convictions. Labor Law, Article 7, Section 201-f, as enacted by Ch. 465 (S.B. 7638), L. 2007, effective Feb. 1, 2009. ¶33-23,500.11.

Health Insurance Benefit Coverage Law

The state’s Insurance Law has been amended to authorize accident and health insurers, medical and health service corporations, and HMOs to establish wellness programs (A. 10884, L. 2007, enacted and effective September 25, 2008, at NY ¶33-4000).

Persons with Disabilities-Public Employment Law

The commission may determine up to five hundred positions with duties such as can be performed by disabled veterans and veterans with disabilities who are found otherwise qualified to perform satisfactorily the duties of any such position. Civil Service Law, Article IV, Title A, Section 55-c, as amended by Ch. 340 (A.B. 10486), L. 2008, effective July 21, 2008. ¶33-20,751.03.

Recordkeeping/Posters Law

The state’s Labor Law has been amended to require public utility companies and their contractors and subcontractors to certify their payrolls under certain circumstances (Ch. 591 (A. 10774), L. 2007, enacted and effective September 25, 2008, at NY ¶33-9900).

Also, employers in the state of New York will be required to post a copy of the New York Correction Law relating to employment of persons with prior criminal convictions under a new law that takes effect on February 1, 2009. New York Labor Law Section 201-F requires that every employer must post a copy of Article 23-A of the Correction Law in a visually conspicuous manner in an accessible location at the workplace (Ch. 465 (S. 7638), L. 2007, enacted August 5, 2008, at NY ¶33-9900).

Violence in the Workplace Law

The state has enacted a law clarifying and expanding the criminal offense of stalking, effective December 1, 2008 (Session Law 2008-167 (H. 887), L. 2007, enacted August 3, 2008, at NC ¶34-3300).

Minimum Wage Law

As previously reported, Ohio’s minimum wage will increase on January 1, 2009, to $7.30 per hour for non-tipped employees, and to $3.65 per hour for tipped employees, plus tips. The state’s current minimum wage is $7.00 per hour for non-tipped employees and $3.50 per hour for tipped employees, plus tips. 

On January 1, 2009, the increased minimum wage will apply to employers who gross more than $267,000 per year. Currently, Ohio’s minimum wage applies to employers who gross over $255,000 per year. 

The constitutional amendment passed by voters in November 2006 states that Ohio’s minimum wage shall increase on January 1 of each year by the rate of inflation. The increase is tied to the Consumer Price Index (CPI) for urban wage earners and clerical workers for the 12-month period prior to September. The CPI rose 4.6 percent from September 1, 2007, to August 31, 2008. The amendment also states that the wage rate shall be rounded to the nearest five cents. 

For employees at smaller companies (grossing $255,000 or less per year or $267,000 or less after January 1, 2009) and for 14- and 15-year-olds, the state minimum wage is currently $6.55 per hour and will increase to $7.25 per hour on July 24, 2009 (Ohio Department of Commerce News Release, October 2, 2008, at OH ¶36-1000).

Health Insurance Benefit Coverage Law

The state has amended its Military Affairs Code to provide that the eligibility for health insurance coverage under a parent’s health insurance policy for eligible members shall be extended for a period equal to the duration of the member’s service on active duty or until the member is no longer a full-time student (Act 2008-85 (S. 180), L. 2007, enacted September 25, 2008, at PA ¶39-4000).

Overtime Pay Law

On October 9, 2008, Pennsylvania Governor Edward G. Rendell signed H. 834 into law. This legislation prohibits mandatory overtime for health care workers except in certain circumstances. The law, commonly known as the “mandatory overtime” law, establishes the “Prohibition of Excessive Overtime in Health Care Act” and says that, except in certain circumstances, a health care facility cannot require an employee to work in excess of an agreed to, predetermined and regularly scheduled shift. Overtime can be mandated when an unforeseeable emergent circumstance occurs and the assignment of additional hours is a last resort; the employer has exhausted reasonable efforts to obtain other staffing; and the employer gives the employee an hour to arrange for child or elder care or care of a disabled family member. This law will take effect July 1, 2009 (Pennsylvania Office of the Governor News Release, October 9, 2008, to be reported).

Wage Payment Law

Material on employee wage statements has been added (PA ¶39-1200).

Workers’ Compensation Law

South Dakota employers will be required to act within 30 days of receiving medical bills by paying, denying or requesting additional information. Failure to pay will subject the employer to fines of $500 (H. 1037, L. 2008, at SD ¶43-4300).

Unemployment Insurance Law

Effective until December 31, 2008, Premium Rate Table 4 is in effect. Employers with a positive reserve ratio of 20% or more will receive a 0.30% premium rate. Effective until June 30, 2009, new employers in Manufacturing Sector 31 will pay 5.5%. Those in Mining and Extracting will pay 6.0%. All other new employer rates remain unchanged (TN ¶44-1700).

No Updates as of October 31, 2008

Workers’ Compensation Law

Utah has prohibited employers who are not self-insured from making workers’ compensation benefit payments directly to or for employees. The Workers’ Compensation Division may assess a first-time fine of $1,000 or $5,000 for subsequent violations (S. 58, L. 2008, at UT ¶46-4300).

Additionally, Utah will allow a workers' compensation insurance carrier to issue a waiver to a business entity that chooses not to include an owner, partner or corporate officer or director as an employee and that has no other employees on the date the waiver is issued. Once the entity employs an employee other than an owner, partner or corporate officer or director, the waiver is invalid and the business entity must provide workers' compensation coverage. The new measure lists the information the employer must provide to the insurer in order to obtain the waiver.

Under the new law, which supersedes the fraud provisions in the general insurance law, workers' compensation fraud includes intentionally, knowingly or recklessly devising a scheme to use a false or fraudulent pretense, representation, promise or material omission to obtain a thing of value, avoid paying premium or deprive an employee of a thing of value. False statements can involve supplying false information regarding class codes or classification of a person as an independent contractor or filing a workers' compensation claim while employed for gain. Penalties are based on the value of the fraud or the number of people deprived of benefits, whichever measure creates the larger penalty (S. 159, L. 2008, at UT ¶46-4300).

Preemployment Inquiries Law

The state has amended its law relating to dissemination of criminal conviction records to the public. Also, fees for criminal history record checks have been increased (Act 165 (S. 246), L. 2007, enacted May 22, 2008, at VT ¶47-9000).

Health Insurance Benefit Coverage Law

The state has enacted a law clarifying that when a group health insurance policy provides coverage for a dependent child who is a full time student and who becomes unable to continue as a full time student due to a medical condition, then coverage under the policy will continue if the child's treating physician certifies to the insurer that the child's absence is medically necessary (Ch. 209 (H. 196), L. 2008, at VA ¶48-4000).

Family, Medical and Parental Leaves Law

The state of Washington has a clear public policy of protecting domestic violence survivors and their children and holding domestic violence perpetrators accountable, a divided Washington supreme court ruled, sending a domestic violence victim's lawsuit against her employer back to a federal trial court to determine if the victim was wrongfully discharged when she took time off to move her children out of an abusive home and into a shelter. Noting that domestic violence has been treated as a serious crime against society and that public policy need not specifically reference employment, the court determined that "Washington has unequivocally established, through legislative, judicial, constitutional, and executive expressions, a clear mandate of public policy of protecting domestic violence survivors and holding abusers accountable." Although the court's decision was in response to a certified question from the trial court, which asked whether the state had a clear policy forbidding employers from firing employees for missing work due to domestic violence, the lead opinion reformulated the question. Writing in dissent, Justice Johnson noted that "The fact that four opinions have been issued—and that we have decided to reformulate the question to avoid the issue entirely—dictates the answer that no such ‘clear' mandate exists." According to the dissent, "This court must conduct its analysis within the boundaries of the specific federal inquiry, deciding if a clear public policy currently exists and not whether a clear public policy should exist" (Danny v Laidlaw Transit Services, Inc, WashSCt, October 2, 2008, at WA ¶49-7000).

Minimum Wage Law

As previously reported, Washington's minimum wage will increase 48 cents to $8.55 an hour beginning January 1, 2009 (Washington State Department of Labor and Industries News Release, September 30, 2008, at WA ¶49-1000).

The Department of Labor and Industries recalculates the state 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 adjusted 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, a national index covering the cost of goods and services needed
for day-to-day living, increased 5.9 percent during the 12-month period ending in August, compared to a 1.8 percent increase during the same period in 2007, which led to a 14-cents-an-hour increase in the 2008 minimum wage.

The 5.9 percent increase, applied to Washington's current minimum wage of $8.07 an hour, generated a 48-cent increase in next year's minimum wage. Washington's minimum wage applies to workers in both agricultural and non-agricultural jobs, although 14- and 15-year-olds may be paid 85 percent of the adult minimum wage, or $7.27 per hour.

Drug Testing Law

The West Virginia Alcohol and Drug-Free Workplace Act requires public improvement contractors to have and implement a drug-free workplace program (S. 657, L. 2008, at WV ¶50-8600).

Workers' Compensation Law

West Virginia has created a rebuttable presumption that certain instances of cardiovascular and pulmonary injury and disease suffered by firefighters may be compensable under the state's workers' compensation law. The new measure also requires the adoption of rules governing the use of sick leave for these conditions to avoid situations in the past in which an employee collected both sick leave and workers' compensation disability benefits. Benefits for occupational pneumoconiosis will be paid if the employee was exposed to the hazards of occupational pneumoconiosis in West Virginia over a continuous period of two years within a 10-year period immediately preceding the last exposure or for any five of 15 years preceding the last exposure. The claim can be allocated among employers involved (S. 571, L. 2008, at WV ¶50-4300).

Criminal Background Checks Law

The division may disseminate criminal history record information to central repositories of other states and to the Federal Bureau of Investigation in accordance with rules and regulations promulgated by the division governing participation in an interstate system for the exchange of criminal history record information, and upon assurance that the information will be used only for purposes that are lawful under the laws of the other states involved or the laws applicable to the Federal Bureau of Investigation. Title 7, Chapter 19, Article 1, Section 7-19-106, as amended by Ch. 7 (H.B. 64), L. 2008, effective July 1, 2008. ¶53-23,601.06.

State auditor employees or applicants for employment who have access to confidential financial or accounting records required to submit to fingerprinting in order to obtain state and national criminal history record information as a condition of employment. Title 7, Chapter 19, Article 2, Section 17-19-201, Ch. 7 (H.B. 64), L. 2008, effective July 1, 2008. ¶53-23,601.21.