State Law Changes

September 16, 2009 Update

No Updates as of September 16, 2009

Health Insurance Benefit Coverage Law

In Arizona, small businesses that did not provide a health benefits plan for at least six consecutive months before the effective date of coverage may be exempt from many of the state’s health coverage mandates. A recently enacted law will reduce the “go bare” period necessary to be considered an uninsured small business—from six months down to 90 days (Ch. 84 (H. 2323), L. 2009, effective October 9, 2009, at AZ ¶3-4000).

Display of Nooses in the Workplace Law—Topic added.

It is prohibited for any person to hang a noose, knowing it to be a symbol representing a threat to life, on the property of a place of employment, for the purpose of terrorizing any person who attends or works or is otherwise associated with the place of employment. Violators are subject to fines of up to $5,000, imprisonment in the county jail for up to one year, or both, for a first conviction, and fines of up to $15,000 and/or imprisonment of up to one year for subsequent convictions. Penal Code, Part 4, Title 1, Chapter 3, Article 4.5, Section 11411, as amended by Ch. 106 (A.B. 412), L. 2009, effective January 1, 2010. Para 5-20,151.01.

Fair Employment Practices Law

California law prohibits a person from terrorizing another by displaying certain symbols, including, but not limited to, a Nazi swastika, on private property, and also prohibits a person from burning, desecrating or destroying a cross or other religious symbol on private property or on primary school, junior high school, or high school grounds for the purpose of terrorizing any person who attends or works there or is otherwise associated with the school. This law is amended effective January 1, 2010, to also prohibit a person from hanging a noose with the intent to terrorize a person at a place of employment; on private property; at a primary school, junior high school, high school or college campus; or at a public park (A. 412, L. 2009, at CA ¶5-2500 and at CA ¶5-3300).

and

In other news, although two employees of a residential facility for neglected and abused children may have had a reasonable expectation that their employer would not secretly install a surveillance camera in their private, enclosed office, they failed to establish that their employer’s actions were highly offensive or constituted an egregious violation of social norms, the California supreme court ruled in a highly anticipated decision. The employer installed the video camera after learning that someone had repeatedly used a computer in the employees’ office late at night to access the Internet and view pornographic Web sites. The monitoring equipment was set up so that it could be activated remotely at any time. However, during the three weeks that it was in place, the employer activated the system only three times, and only after the employees’ shift had ended. The employees were never secretly viewed or taped. Noting that the employees had to show more than an intrusion upon reasonable privacy expectations, the court stated that “[a]ctionable invasions of privacy must also be ‘highly offensive’ to a reasonable person and ‘sufficiently serious’ and unwarranted as to constitute an ‘egregious breach of the social norms.’ “In this case, the court stressed, the employer’s use of the surveillance system was narrowly tailored in place, time and scope and was prompted by legitimate business concerns. Moreover, the employees’ privacy concerns were alleviated by the limited nature of the intrusion and by the fact that no information about them was accessed, gathered, or disclosed (Hernandez v Hillsides, Inc, CalSupCt, August 3, 2009, at CA ¶5-2500).

Antidiscrimination Act

The Colorado Civil Rights Division and the Colorado Civil Rights Commission powers and duties were extended from July 1, 2009 to July 1, 2018. Also, the commission, a commissioner, or the attorney general on its own motion may make, sign, and file a charge alleging a discriminatory or unfair practice in cases where the commission, a commissioner, or the attorney general determines that the alleged discriminatory or unfair practice imposes a significant societal or community impact. Title 24, Article 34, Sections 24-34-302, 24-23-304 through 24-23-306, and 24-34-402, as amended by Ch. 238 (S.B. 110), L. 2009, and effective July 1, 2009. Paras 6-20,025.02, 6-20,025.04–6-24,025.06 and 6-20,026.02.

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Fair Employment Practices Law

Colorado law prohibiting discriminatory and unfair employment practices has been amended to extend the law to prohibit discrimination as to “terms, conditions, or privileges of employment.” It is a discriminatory or unfair employment practice for an employer to refuse to hire, to discharge, to promote or demote, to harass during the course of employment, or to discriminate in matters of compensation, terms, conditions or privileges of employment against any person otherwise qualified because of disability, race, creed, color, sex, sexual orientation, religion, age, national origin, or ancestry. Also, language and procedures have been revised regarding filing and investigation of complaints and for requests for notice of right to sue, and the law has been amended to give authority for the civil rights commission, a commissioner, or the attorney general, on their own motion, to make, sign and file a charge alleging a discriminatory or unfair practice in cases where it is determined that the alleged discriminatory or unfair practice imposes a significant societal or community impact, but limiting the remedy in this scenario to equitable relief to eliminate the discriminatory or unfair practice. Also, note that the Colorado Civil Rights Division, including the Colorado Civil Rights Commission, and its functions are scheduled to terminate on July 1, 2018 (Ch. 238 (S. 110), L. 2009, at CO ¶6-2500).

Health Insurance Benefit Coverage Law

An employer may elect not to pay the group health insurance premium for an employee who is voluntarily or involuntarily terminated (for any reason other than layoff). If such election is made, the insurer, health care center, hospital or medical service corporation, or fraternal benefit society issuing the group policy must credit the employer for any premium amount paid with respect to the terminated employee (and applicable dependents) for the period after the termination date, provided the employer notifies the policy issuer and the terminated employee no later than 72 hours after the termination (P.A. 126 (H. 5669), L. 2009, effective October 1, 2009, at CT ¶7-4000).

Affirmative Action in State Employment (E.O. No. 81)

Delaware Governor Jack Markell issued Executive Order No. 81 extending anti-discrimination safeguards for state employees and applicants for state jobs to all military veterans and to protect against discrimination based on gender identity or expression. Previously, only veterans of the Vietnam War were included in veteran status anti-discrimination provisions. The EO also reauthorizes the Governor’s Council on Equal Employment Opportunity and added a new task to the review the executive branch’s efforts in achieving workforce diversity and make recommendations on how the executive branch can improve relations among current employees. Executive Order No. 8 rescinding Executive Order No. 81 and Executive Order No. 86, was signed Aug. 11, 2009 effective immediately. Para 8-23,400.

Fair Employment Practices Law

Delaware Governor Jack Markell (D) issued an Executive Order (EO 8) August 12, 2009, that extends anti-discrimination safeguards for state employees and applicants for state jobs to protect all military veterans (previous orders only covered Vietnam War veterans) and to protect against discrimination based on gender identity. The EO also reauthorizes the Governor’s Council on Equal Employment Opportunity (Executive Order 8, August 12, 2009, at DE ¶8-2500).

Health Insurance Benefit Coverage Law

A new law in Hawaii will require all accident and health or sickness insurance policies that cover cancer treatment to provide payment or reimbursement for all medically necessary chemotherapy, including orally administered chemotherapy, at the same copayment percentage or relative coinsurance amount as applied to intravenously administered chemotherapy. HMOs also will become subject to this requirement (Ch. 168 (S. 166), L. 2009, effective January 1, 2010, at HI ¶12-4000).

Preemployment Inquiries Law

The Hawaii Health Systems Corporation may request a criminal history record check of persons who are employed or seeking employment, or who are current or prospective contractors, providers, or volunteers in any of the corporation's health facilities. A current or prospective contractor, provider, or volunteer who has been convicted of a criminal offense for which incarceration is a sentencing option may be terminated, released, or not used. This action shall be based on the corporation's analysis of whether the nature and circumstances of the crime may pose a risk to the health, safety, or well-being of patients, residents, and organizations in its health facilities (S. 1673, L. 2009, at HI ¶12-9000).

Employment of Aliens Law

Invalid provisions were removed in the law that prohibited employers from enrolling in any Electronic Employment Verification System, such as the Basic Pilot and E-Verify programs, to instead urge employers considering voluntary enrollment in these programs to consult the Illinois Department of Labor's Internet website for current information on the accuracy of E-Verify and to review and understand the employer’s legal responsibilities relating to use of the program. The revised law also requires employers to fill out and post an attestation form prescribed by the Illinois Department of Labor giving notice of the employer's use of the program; prohibits employers from using the program prior to hiring or as a screening tool prior to hiring and completion of a Form 1-9; and prohibits employers from terminating an employee or from taking any other adverse employment action prior to receiving a final nonconfirmation notice from the Social Security Administration or the Department of Homeland Security. Chapter 820, Section 55/12 is amended by P. A. 96-623 (S.B. 1133), L. 2009, effective January 1, 2010. Para 14-24,050.01.

Equal Pay Act of 2003

Employees and former employees may file a complaint with the Department of Labor alleging a violation of the Act by submitting a signed and completed complaint form within one year from the date of the underpayment. Employees may recover in a civil action the entire amount of any underpayment together with interest and the costs and reasonable attorney's fees as may be allowed by the court and as necessary. Employers shall preserve employee information and pay records for at least 5 years, unless the records relate to an ongoing investigation or enforcement action, in which case the records must be maintained until their destruction is authorized by the Department or by court order. Chapter 820, Sections 112/15, 112/20, 112/30 and 112/35, as amended by P.A. 467 (H.B. 3634), L. 2009, effective Aug. 14, 2009. Paras 14-23,102.04, 14-23,102.05, 14-23,102.07 and 14-23,102.08.

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Fair Employment Practices Law

Effective January 1, 2010, it will be unlawful to discriminate against an individual on the basis of order of protection status in connection with employment, real estate transactions, access to financial credit, and the availability of public accommodations. “Order of protection status” means a person's status as being a person protected under an order of protection issued pursuant to the Illinois Domestic Violence Act of 1986 or an order of protection issued by a court of another state (P.A. 447 (H. 721), L. 2009, at IL ¶14-2500).

Additionally, the Illinois Equal Pay Act of 2003 has been amended to provide that an employee or former employee may file a complaint with the Department of Labor alleging a violation of the Act by submitting a signed, completed complaint form, which must be filed with the Department within one year from the date of the underpayment. Also, an employee paid less than the wages he or she is entitled to may recover such amounts in a civil action. At the employee’s request and on motion of the director, the department may make an assignment of the wage claim in trust and bring any legal action necessary to collect the claim, and the employer shall be required to pay court costs incurred in collecting the claim. Every such action must be brought within five years from the date of underpayment, with “date of underpayment” defined to mean each time wages are underpaid. An employer who has been demanded by the Director of Labor or ordered by the court to pay wages due an employee and who fails to do so within 15 days after such demand or order shall be liable to pay a penalty of one percent per calendar day to the employee for each day of delay in paying such wages to the employee, up to an amount equal to twice the sum of unpaid wages due the employee.

Recordkeeping requirements have been amended to require employers to preserve records for a period of not less than five years and to make reports from the records as prescribed by rule or order of the Director of the Department of Labor, unless the records relate to an ongoing investigation or enforcement action, in which case such records must be maintained until their destruction is ordered by the Department or by court order (P.A. 467 (H. 3634), L. 2009, effective August 14, 2009, at IL ¶14-2500).

Human Rights Act

Effective Jan. 1, 2010, it will be prohibited to discriminate against an individual on the basis order of protection status in connection with employment, real estate transactions, access to financial credit, and the availability of public accommodations. “Order of protection status” means a person's status as being a person protected under an order of protection issued pursuant to the Illinois Domestic Violence Act of 1986 or an order of protection issued by a court of another state. Chapter 775, Act 5, Article 1, Sections 5/1-102 and 5/1-103, as amended by P.A. 447 (H.B. 721), L. 2009, effective Jan. 1, 2009. Paras 14-20,025.02 and 14-20,025.03.

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Military and Emergency Services Leave Law

Military leave of absence provisions applicable to public employments provide that full-time employees of the state of Illinois, a unit of local government, or a school district, other than an independent contractor, who are members of any reserve component of the United States Armed Forces or of any reserve component of the Illinois State Militia are to be granted leave from public employment for any period actively spent in military service, including basic training; special or advanced training; and for annual training. This law has been amended to include leave for any other training or duty required by the United States Armed Forces (P.A. 96-346 (S. 337), L. 2009, effective January 1, 2010, at IL ¶14-7200).

Preemployment Inquiries Law

The Illinois “Right to Privacy in the Workplace Act” has been amended to remove invalid provisions in the law that prohibit employers from enrolling in any Electronic Employment Verification System, such as the Basic Pilot and E-Verify programs, to instead urge employers considering voluntary enrollment in these programs to consult the Illinois Department of Labor's Internet website for current information on the accuracy of E-Verify, and to review and understand the employer’s legal responsibilities relating to use of the program. The revised law also requires employers to fill out and post an attestation form prescribed by the Illinois Department of Labor giving notice of the employer's use of the program; prohibits employers from using the program prior to hiring or as a screening tool prior to hiring and completion of a Form 1-9; and prohibits employers from terminating an employee or from taking any other adverse employment action prior to receiving a final nonconfirmation notice from the Social Security Administration or the Department of Homeland Security (P.A. 96-623 (S. 1133), L. 2009, effective January 1, 2010, at IL ¶14-9000).

Victims’ Economic Security and Safety Act

Employees who are victims of domestic or sexual violence working for an employer that employs at least 15 but not more than 49 employees are now entitled to a total of 8 workweeks of unpaid leave during any 12-month period from work to address domestic or sexual violence issues. Previously, the Victim's Economic Security and Safety Act covered only employers that employ 50 or more employees; employees of such employers continue to receive 12 workweeks of unpaid leave during a 12-month period. Unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the employer, a reasonable accommodation must be made in a timely fashion. Any exigent circumstances or danger facing the employee or his or her family or household member shall be considered in determining whether the accommodation is reasonable. In addition, the definition of “family or household member” is extended to include a person related by blood or by present or prior marriage, or a person who shares a relationship through a son or daughter jointly residing in the same household. Chapter 820, Sections 180/5, 180/10, 180/15, 180/20, 180/25, 180/30, and 180/40, as amended by P.A. 96-635 (S.B. 1770), L. 2009, effective Aug. 24, 2009. Paras 14-21,050.02 through 14-21,050.07 and 14-21,050.09.

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Child Support Enforcement Law

The law relating to withholding of employee compensation for child support enforcement has been amended to provide that an employer is to withhold from compensation the employee's share, if any, of premiums for the health benefit plan in an amount that does not exceed the amount specified in the national medical support notice or order or the amount specified and consistent with federal law (15 U.S.C. Section 1673(b)). The employer is to forward the amount withheld to the insurer (S. 319, L. 2009, at IA ¶16-5500).

Blood Donation Leave Rules-State Employees

An employee who, during regular working hours, donates blood at a licensed blood center certified by the Food and Drug Administration shall receive 4 hours leave time, with pay, for the purpose of donating and recuperating from the donation. Leave granted under this section shall be used at the time of the donation unless circumstances as specified by the supervisor required the employee to return to work. If the employee returns to work, the unused portion of the leave time shall be credited as compensatory leave. Title 101, Sections 101 KAR 2:102(3) and 101 KAR 3:015(11), as amended effective July 15, 2009. Paras 18-23,000.01 and 18-23,000.02.

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Breastfeeding Rights in Employment Law

Provisions providing mothers may breastfeed their baby or express breastmilk in any location, public or private, where the mother is otherwise authorized to be were codified. Title XVIII, Chapter 211, Section 211.755, as enacted by S.B. 106, L. 2006, effective July 11, 2006. Para 18-22.650.01.

Family Leave Rules-State Employees

An employee shall be entitled to a maximum of 12 weeks of accumulated annual or sick leave, unpaid family and medical leave, or a combination thereof, for the birth, placement, or adoption of a child. While an employee is on unpaid family and medical leave, the state contribution for health and life insurance shall be maintained by the employer. Title 101, Sections 101 KAR 2:102(3) and 101 KAR 3:015(11), as amended effective July 15, 2009. Paras 18-22,500.01 and 18-22,500.02.

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Family, Medical and Parental Leaves Law

An employee shall be entitled to a maximum of 12 weeks of accumulated annual or sick leave, unpaid family and medical leave, or a combination thereof, for the birth, placement, or adoption of a child. While an employee is on unpaid family and medical leave, the state contribution for health and life insurance shall be maintained by the employer (Title 101, Sections 101 KAR 2:102(3) and 101 KAR 3:015(11), as amended effective July 15, 2009, at KY ¶18-7000).

An employee who, during regular working hours, donates blood at a licensed blood center certified by the Food and Drug Administration shall receive four hours' leave time, with pay, for the purpose of donating and recuperating from the donation. Leave granted under this section shall be used at the time of the donation unless circumstances as specified by the supervisor required the employee to return to work. If the employee returns to work, the unused portion of the leave time shall be credited as compensatory leave (Title 101, Sections 101 KAR 2:102(3) and 101 KAR 3:015(11), as amended effective July 15, 2009, at KY ¶18-7000).

Health Insurance Benefit Coverage Law

Louisiana has enacted a law requiring health insurance issuers to provide coverage and reimbursement to a unique provider of health services for catastrophically ill children located outside the state, in accordance with the terms and conditions of the insurance policy. The law also prohibits discrimination in health insurance based on genetic information and adds a new exception to the state’s autism coverage mandate (Act 419 (H. 406), L. 2009, effective August 15, 2009, at LA ¶19-4000).

Preemployment Inquiries Law

After the completion of a criminal background check of a nonlicensed health care individual, the Department of Public Safety and Corrections or authorized agency shall provide to the employer only such information as is necessary to specify whether or not that person has been arrested for or convicted of or pled nolo contendere to any crime or crimes, the crime or crimes for which the individual has been arrested or convicted or to which the individual has pled nolo contendere, and the date or dates on which the crime or crimes occurred (Act 35 (H. 432), L. 2009, at LA ¶19-9000).

No Updates as of September 16, 2009

Wage Payment Law

A federal district court erred in its post-trial interpretation of the statutory definition of “service charge” under the Massachusetts Wage Act, the Massachusetts supreme judicial court held, addressing the issue on certification from the federal court in a suit brought by airport skycaps. The skycaps, who were employed by a contractor of American Airlines, argued the airline violated the Act when it implemented a $2-per-bag charge for curbside baggage check-in and failed to distribute the proceeds of the charge to skycaps. After a jury found for the skycaps, the airline requested and the district court granted a new trial, reasoning that it had erred in instructing the jury that, under the Act, the definition of “service charge” applied only to a fee charged by an “employer.” The airline too contended the use of the word “employer” meant that only the direct employer was barred from pocketing service charges – in this case, the baggage service contractor - and so remittance back to the airline did not violate the Act. The state high court rejected this assertion, noting it was clearly not the intent of the legislature to permit airlines to avoid the mandates of the statute by “outsourcing services … and contractually requiring the outsource employer remit to the … airline all or part of the service charges.” This “end run” was exactly what the wage act sought to protect against, the supreme court reasoned, and such an interpretation would not protect gratuity payments given to service employees. “The Legislature intended to ensure that service employees receive all the proceeds from service charges, and any interpretation of the definition of ‘service charge’ must reflect that intent,” wrote the court. Noting that the legislature specifically allowed courts to revise statutory definitions if they interfered with the legislative purpose, the high court adjusted the definition of “service charge” to mean a fee charged by any person or entity (DiFiore v American Airlines, Inc, MassSupJCt, August 4, 2009, at MA ¶22-1200).

Preemployment Inquiries Law

Any entity contracting with the state or any political subdivision of the state shall only be required to provide the required affidavits to the state and any political subdivision of the state with which it contracts, on an annual basis. During or immediately after an emergency, the requirement of a business entity to enroll and participate in a federal work authorization program shall be suspended for 15 working days (H. 390, L. 2009, at MO ¶26-9000).

The Missouri Attorney General’s Office has adopted rules implementing the law prohibiting private and public employers and business entities from employing an unauthorized alien to perform work within the state. Also, as a condition for the award of any contract or grant in excess of $5,000 by the state or by any political subdivision of the state to a business entity, or for any business entity receiving a loan from the state, the business entity shall submit an affidavit containing a statement that: (1) the business entity has enrolled in, and is currently participating in, E-verify; (2) that the business entity does not knowingly employ any person who is an unauthorized alien in conjunction with the contracted services; and (3) a notarized signature of the registered agent, legal representative of the business entity, or a corporate officer, including, but not limited to, the human resources director of the business entity or their equivalent (Title 15, Division 60, Chapter 15, Sections 15 CSR 60-15.010 through 15 CSR 60-15.050, as adopted effective August 30, 2009, at MO ¶26-9000).

Personnel Commission proposes to extend FMLA rules for servicemember care

The Nevada Personnel Commission has drafted rules proposing to provide state employees up to 26 weeks of unpaid family and medical leave a year to care for an employee’s immediate family who is a servicemember. An employee who meets the requirements for eligibility for and who is taking leave pursuant to the Family and Medical Leave Act must exhaust all the accrued sick leave, accrued annual leave , accrued compensatory time and catastrophic leave that the employee is eligible to use based on the nature of the absence before he may use leave without pay. The rules were proposed August 24, 2009.

Unemployment Insurance Law

New language requires aliens, whether or not they are required to be covered by FUTA, to be included as employees in determining whether agricultural labor services are “employment”. The current maximum weekly benefit amount in Nevada is $400 (NV ¶29-1700).

Criminal Background Checks Law

For the duration of licensure or certification every individual selected for employment with any health care facility or entity required to be licensed or certified are to submit to the employer a notarized criminal conviction record release authorization form, including volunteers. Volunteers do not include any person admitted to a facility or entity or who resides in an affiliated corporate entity that is an integral part of the same community. Title XI, Chapter 151, Section 151:2-d, as amended by Ch. 259 (S.B. 95), L. 2009, effective July 16, 2009. Para 30-23,600.17.

Health Insurance Benefit Coverage Law

New Hampshire has enacted a law that recognizes the delivery of medical care through telemedicine. Under the law, insurers offering health plans in the state may not deny coverage for health care services solely because they are delivered through telemedicine, if those services would be covered if provided through in-person consultation between the covered person and a health care provider. “Telemedicine” means the use of audio, video or other electronic media for the purpose of diagnosis, consultation or treatment, but does not include the use of audio-only telephone or facsimile (Ch. 259 (S. 138) L. 2009, effective October 14, 2009, at NH ¶30-4000).

Plant Closing Law

The New Hampshire Worker Adjustment and Retraining Notification Act (WARN Act) will take effect January 1, 2010. Under this law, businesses will be required to give workers 60 days’ advance notice of a plant closing or mass layoff. This new law will apply to businesses with 75 or more employees (employees working full-time or those working in the aggregate at least 3,000 hours per week, not including overtime hours). Notice must also be given to employees and their representatives, the commissioner of labor, the attorney general, and the chief elected official of each municipality in New Hampshire in which the plant closing or mass layoff occurs. In addition, this law will give the state department of labor the ability to assert a lien on a company to better pursue compensation for affected workers (Ch. 325 (S. 40), L. 2009, at NH ¶30-3500).

Preemployment Inquiries Law

The state has enacted a law adding a definition of “volunteers” for the purposes of the criminal record check required for potential employees in health care facilities (Ch. 250 (S. 95), L. 2009, at NH ¶30-9000).

Health Insurance Benefit Coverage Law

New Jersey Governor Jon S. Corzine has signed legislation requiring health insurers to provide diagnostic coverage for autism and developmental disabilities screening. The measure also mandates coverage of therapeutic services, including medically necessary occupational, physical and speech therapy. When an insured or covered individual is under age 21 with the primary diagnosis of autism, additional coverage is required for medically necessary behavioral interventions based on the principles of applied behavioral analysis and related structured behavioral programs. Through 2011, the maximum required benefit for behavioral intervention coverage will be $36,000 per year. Beginning on January 1, 2012, this amount will be subject to annual adjustments based on the Consumer Price Index (Ch. 115 (A. 2238), L. 2008, effective February 9, 2010, at NJ ¶31-4000).

Recordkeeping/Posters Law

Contractors and subcontractors who employ less than 1,000 employees in the State of New Jersey and who contract with a public body to collect or transport solid waste must make and keep accurate records, for at least two years, that show the name, hourly rate of wages paid to, and the daily, overtime and weekly hours worked under the contract, and any other records deemed necessary by the labor commission for enforcement of the payment of wages (Ch. 88 (S. 1421), L. 2009, effective July 15, 2009, at NJ ¶31-9900).

Unemployment Insurance Law

Effective January 1, 2010, workers will pay a rate of 0.012% to cover Family Leave Insurance. The current rate is 0.09% (NJ ¶31-1700).

Wage Payment Law

Under New Jersey’s wage collection law, contractors and subcontractors who employ less than 1,000 employees in the State of New Jersey and who contract with a public body to collect or transport solid waste must make and keep accurate records, for at least two years, that show the name, hourly rate of wages paid to, and the daily, overtime and weekly hours worked under the contract, and any other records deemed necessary by the labor commission for enforcement of the payment of wages. The contractor or subcontractor must submit certified payroll records to the public body for each payroll period not more than 10 days after the payment of wages. Such certified payroll records are to be open for inspection by any party to the contract, the commissioner of labor and workforce development, and any member of the public. Contractors and subcontractors that fail to keep records, falsify records, or refuse to make records available for inspection face fines of $100 to $1,000 and/or imprisonment of 10 to 90 days, and are also subject to administrative penalties of $2,500 for a first violation and up to $5,000 for each subsequent violation (Ch. 88 (S. 1421), L. 2009, effective July 15, 2009, at NJ ¶31-1200).

COBRA Law

New York has extended the period of time continuation coverage lasts under its mini-COBRA law from 18 to 36 months. This extension applies to all employers, regardless of the number of employees. In effect, this means that employees who have exhausted their continuation coverage rights under federal COBRA may generally obtain 18 months of additional continuation coverage under New York law (A. 8400, L. 2009, enacted July 29, 2009, and effective (retroactively to) July 1, 2009, at NY ¶33-4200).

An unmarried child of a current employee covered by group health insurance may elect to continue coverage as a dependent under the group plan through the age of 29, even if dependent coverage under the terms of the plan normally terminates as of a certain age. The adult child must not be insured by (or eligible for coverage under) any employer health benefit plan as an employee or member, and must live, work or reside in New York or the insurer's service area. The dependent need not demonstrate financial reliance on the employee in order to qualify. The employer is not required to pay any portion of the cost of this extended coverage (A. 9038, L. 2009, effective September 1, 2009, at NY ¶33-4200).

Equal Pay Law

On behalf of any employee paid less than the wage to which he or she is entitled, the commissioner may bring any legal action necessary, including administrative action, to collect such claim and as part of such legal action, in addition to any other remedies and penalties otherwise available. Employers may be assessed an additional amount as liquidated damages equal to 25% of the total amount of wages found to be due, unless the employer proves a good faith basis for believing that its underpayment of wages was in compliance with the law. Labor Law, Article 6, Section 198, as amended by A.B. 6963, L. 2009, effective Nov. 24, 2009. Para 33-23,100.06.

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Family, Medical and Parental Leaves Law

Positioning New York City to become the fourth municipality in the country to pass paid sick leave legislation, Council Member Gale A. Brewer (D-Manhattan) introduced legislation on August 20, 2009, mandating that New York City private employers provide paid sick leave to their employees. Thirty-five of the 51 City Council Members have agreed to cosponsor the bill. New York City Mayor Michael Bloomberg has also endorsed the concept of paid sick days.

Called the Earned Paid Sick Leave Law, the bill would require employers to provide paid sick leave annually to each employee at a rate of one hour of paid sick leave for every 40 hours worked. Employees who work a 40 hour workweek would earn up to nine paid sick days per year, while employees working for small businesses (employing 10 or less employees) would earn up to five days per year. Employees are eligible for the benefit once they begin work, but the paid sick days cannot be used until the employee has worked at least 90 days.

An employer must permit an employee to use the paid sick leave for the following reasons: (1) an employee's or the employee's child's, spouse's, parent's, grandparent's or domestic partner's mental or physical illness, diagnosis or preventive medical care; (2) issues related to domestic violence; and (3) in the event a public official closes a school or place of business due to a public health emergency. According to the bill, reasonable notice of foreseeable leave may be required and documentation may also be required for leave of more than three days. In addition, the bill bans employers from taking retaliatory personnel actions or discriminating against an employee for taking the leave. Businesses would be fined $1,000 per violation.

Health Insurance Benefit Coverage Law

A new law in New York will require group accident and health insurers issuing policies that cover dependent children to offer and, if requested by the policyholder, extend coverage under the policy to unmarried children through age 29, without regard to financial dependence. Children must not be insured by (or eligible for coverage under) any employer health benefit plan as an employee or member, and must live, work or reside in New York or the insurer's service area. Extended dependent coverage must be made available at the inception of a new policy or, if not new, on the policy's anniversary date. In addition, written notice of the availability of such coverage must be delivered to the policyholder prior to the inception of the group policy and annually thereafter. Similar provisions also apply to group contracts issued by nonprofit medical indemnity, health and hospital service corporations (A. 9038, L. 2009, effective September 1, 2009, at NY ¶33-4000).

In addition, New York has eliminated the scheduled repeal of its mental health parity legislation, known as “Timothy's Law.” The provisions were set to expire on December 31, 2009 (Ch. 181 (A. 8611), L. 2009, at NY ¶33-4000).

Minimum Wage Law

The New York Department of Labor has made adjustments to regulations dealing with the state minimum wage, as required by the increase in the federal minimum wage to $7.25 per hour effective July 24, 2009, and also to adjust various wage allowances in the same proportion as the minimum wage increase. Minimum Wage Orders are amended for the restaurant industry; hotel industry; building services industry; miscellaneous industries except nonprofitmaking institutions; nonprofitmaking institutions that have not elected to be exempt from coverage under a minimum wage order; and for farm workers (12 NYCRR Parts 137, 138, 141, 142-2, 142-3, and 190, at NY ¶33-1000).

Overtime Pay Law

Under New York Labor Law Section 167, health care employers are prohibited from requiring mandatory overtime for nurses, except in certain emergency situations. Emergency rulemaking is adopted by the New York Department of Labor to clarify the emergency circumstances under which an employer may require mandatory overtime for nurses. This rulemaking also requires health care employers to implement a Nurse Coverage Plan, taking into account typical patterns of staff absenteeism and reflecting the employer’s typical levels and types of patients served. This Plan must identify and describe alternate staffing methods available, and must require documentation for all attempts to avoid use of mandatory overtime during a patient care emergency and to seek alternative staffing. This Plan must be in writing and be made available to all nursing staff through distribution to staff, conspicuously posting the Plan in an accessible location accessible to nursing staff, or through some other means to ensure availability to the staff, such as through the employer’s Internet website. The Plan must also be provided to the Commissioner of Labor or his or her designee, upon request (12 NYCRR Part 177, effective July 15, 2009, at NY ¶33-1100).

Wage Payment Law

New York employers are required to give notice to employees at time of hire of the rate of pay and the employer’s designated pay day. Effective October 26, 2009, employers must give such notice to employees in writing. In addition, if employees are eligible for overtime compensation, such notice must also state the regular hourly rate of pay and the overtime rate of pay. Employers must obtain written acknowledgment from each employee of receipt of such notice (Ch. 270 (S. 3357), L. 2009, enacted July 28, 2009, and effective October 26, 2009, at NY ¶33-1200).

Child Labor Law

Penalties for violations of child labor laws will increase in December. Any employer who violates the state’s youth employment provision or related regulations will be subject to a civil penalty of up to $500 for the first violation and up to $1,000 for each subsequent violation; currently, fines are not to exceed $250. In addition, employers will be required to make, keep and preserve employment records that include the ages of employees as well as the wages, hours and other conditions and practices of employment. Employers who violate recordkeeping requirements will be subject to a civil penalty of up to $250 per employee with the maximum not to exceed $2,000 per investigation by the Commissioner or the Commissioner’s authorized representative. Currently, the maximum penalty per investigation is up to $1,000. In addition, civil and criminal penalties will be imposed for violation of the state Occupational Safety and Health Law where injury or death occurs, and for falsification of records pertaining to employees under 18 years of age (Session Law 2009-351 (H. 23), L. 2009, effective December 1, 2009, at NC ¶34-1500).

Health Insurance Benefit Coverage Law

A new law in North Carolina will require health benefit plans to provide coverage for the diagnosis, evaluation and treatment of lymphedema. Coverage must include benefits for equipment, supplies, complex decongestive therapy, gradient compression garments and self-management training and education, if the treatment is medically necessary and provided by a licensed occupational or physical therapist, licensed nurse with experience providing this treatment, or other licensed health care professional whose treatment of lymphedema is within the professional's scope of practice. Coverage may be subject to the same deductibles, coinsurance and other limitations applicable to similar services under the plan (Ch. 313 (H. 535), L. 2009, effective January 1, 2010, at NC ¶34-4000).

North Carolina has also revised its insurance law to reflect recently enacted federal legislation, including Michelle’s Law, the Genetic Information Nondiscrimination Act of 2008, and the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (Ch. 382 (H. 1183), L. 2009, effective October 1, 2009, at NC ¶34-4000).

Recordkeeping/Posters Law

Employers subject to the state wage and hour act must make, keep, and preserve such records of the persons employed, and of the wages, hours, and other conditions and practices of employment that are essential to the enforcement of the wage and hour act and are prescribed by regulation of the commissioner of labor, except that the commissioner has no authority to prescribe records for the State of North Carolina, a city, town, county or other municipality or agency or instrumentality of government. Employers who fail to keep proper records face a penalty of up to $250 per employee with the maximum not to exceed $1,000 per investigation. Effective December 1, 2009, these records must also contain the ages of employees. Employers who fail to keep proper records face a civil penalty of up to $250 per employee with the maximum not to exceed $2,000 per investigation by the labor commissioner or the commissioner's authorized representative (Session Law 2009-351 (H. 23), L. 2009, effective December 1, 2009, at NC ¶34-9900).

Smoking in the Workplace Law

State law prohibiting smoking in certain public places has been amended to prohibit smoking in certain places of employment. In addition to prohibiting smoking in state government buildings and state vehicles, smoking will also be prohibited, effective January 2, 2010, in enclosed areas of bars and restaurants. Exceptions to the law provide that smoking may be permitted in designated smoking guest rooms in lodging establishments (no greater than 20 percent of guest rooms may be designated as smoking rooms); a cigar bar, provided the smoke does not migrate into enclosed areas where smoking is prohibited; or a private club. A person who manages, controls or operates a restaurant or bar where smoking is prohibited must post signs clearly stating smoking is prohibited, must remove all indoor ashtrays and smoking receptacles, and must direct a person who is smoking to extinguish the lighted tobacco product. The law relating to local government restrictions on smoking in public places has also been revised (Ch. 27 (H. 2), L. 2009, effective January 2, 2010, at NC ¶34-2700).

Unemployment Insurance Law

The current maximum weekly benefit amount in North Dakota is $431, and the current minimum weekly benefit amount is $43 (ND ¶35-1700).

Criminal Background Checks Law

If a school district or private school contractor, whether part-time or full-time, or an employee of a contractor has been convicted of a crime listed in ORS 342.143 (3), a school district may not employ or contract with the person and a private school may choose not to employ or contract with the person. Notification by the superintendent that the school district may not employ or contract with the person shall remove the person from any school district policies, collective bargaining provisions regarding dismissal procedures and appeals. If any of the persons described above states on a criminal history form provided by the Department of Education that the person has not been convicted of a crime but the criminal records check indicates that the person has a conviction, the department shall determine whether the person knowingly made a false statement as to the conviction. The department shall develop a process and criteria to use for appeals of a determination. Title 30, Chapter 326, Section 326.603, as amended by Ch. 437 (S.B. 46), L. 2009, effective June 23, 2009. Para 38-23,600.01.

A school district, education service district, private school or public charter school may hire on a probationary basis a school district or private school contractor, whether part-time or full-time, or an employee of a contractor pending the return of the criminal records check. Title 30, Chapter 342, Section 342.232, as amended by Ch. 437 (S.B. 46), L. 2009, effective June 23, 2009. Para 38-23,600.15.

Fair Employment Practices Act

Effective Jan. 1, 2010, any person claiming to be aggrieved by an alleged unlawful employment practice may file with the Commissioner of the Bureau of Labor and Industries a verified written and signed complaint that states the name and address of the person alleged to have committed the unlawful practice. The complaint must set forth the acts or omissions alleged to be an unlawful practice. Title 51, Chapter 659A, Section 659A.820, as amended by Ch. 108 (S.B. 56), L. 2009, and effective Jan. 1, 2010. Para 38-20,025.820.

Fair Employment Practices Law

Oregon's new law relating to workplace communications has been amended. As previously reported, this law (S. 519), scheduled to take effect January 1, 2010, will prohibit employers in the state from taking adverse employment actions against employees who decline to attend or participate in employer-sponsored meetings the primary purpose of which is to communicate the employer's position on religious and political matters, including meetings on union organizing. The law will not prohibit a political organization from requiring its employees to attend an employer-sponsored meeting or to participate in any communication with the employer for the primary purpose of communicating the employer's political tenets or purposes.

The law has been amended, also effective January 1, 2010, to revise and clarify language. The definition of “political matters” has been revised to include activity related to political party affiliation, campaigns for measures, as defined in ORS 260.005, or candidates for political office and the decision to join, not join, support or not support any lawful political or constituent group. The definition of “religious matters” has been revised to include activity related to religious affiliation or the decision to join, not join, support or not support a bona fide religious organization (H. 3507, L. 2009, at OR ¶38-2500).

The procedure for filing a complaint under the state's fair employment practices law will also be changing. A person claiming to be aggrieved by an alleged unlawful employment practice may file with the Commissioner of the Bureau of Labor and Industries a verified written complaint that states the name and address of the person alleged to have committed the unlawful practice. The complaint, which generally must be filed within one year, may be signed by the complainant or the attorney for the complainant. This provision has been amended to provide that the complaint MUST be signed by the complainant (Ch. 108 (S. 56), L. 2009, effective January 1, 2010, at OR ¶38-2500).

Garnishment Law

An Oregon employer required to make any payment under a writ of garnishment by reason of wages payable to the debtor may collect a processing fee of $1 for each week of wages, or fraction of a week of wages, for which payment is made. This processing fee will increase to $2, effective January 1, 2010 (Ch. 529 (H. 3474), L. 2009, at OR ¶38-5600).

Health Insurance Benefit Coverage Law

Group health benefit plans that cover services performed by a clinical social worker or nurse practitioner must also cover services provided by a licensed professional counselor or marriage and family therapist, under a new law in Oregon. The law allows HMOs to limit covered services to those provided (or upon referral) by contracted providers. HMOs and health care service contractors also may create benefit and reimbursement differentials at the same level as - and subject to limitations not more restrictive than - those imposed on expenses arising from other medical conditions, and apply them to contracting and noncontracting providers. Trusts carrying out multiple employer welfare arrangements (MEWAs) will also become subject to the new requirements (Ch. 549 (H. 2506), L. 2009, effective January 1, 2010, at OR ¶38-4000).

Beginning next year, Oregon’s heath insurance mandate for coverage of nonprescription elemental enteral formula will become applicable to trusts carrying out multiple employer welfare arrangements, and will no longer be subject to automatic sunset (H. 3496, L. 2009, effective January 1, 2010, at OR ¶38-4000).

Whistleblower Protection Law

A car salesman failed to establish that he was wrongfully discharged in violation of public policy after he allegedly was fired for reporting to management that an outside firm with which his employer had contracted had engaged in unlawful sales practices. State law reflects a public policy that prohibits the kind of deceptive conduct about which the employee complained, the Oregon supreme court acknowledged. However, the high court stressed that the employee was never asked by his superiors to do anything unethical or unlawful. Moreover, although the employee argued that his internal complaints fulfilled an important public duty or served an important public interest, the employee did not report the unlawful practices to any entity with authority to take action against the outside firm. Nor did the employee report that he had been required to engage in unlawful trade practices or that his employer was engaged in such practices. Thus, a jury verdict in favor of the employee was properly overturned, the supreme court found (Lamson v Crater Lake Motors, Inc, OreSupCt, August 20, 2009, at OR ¶38-3600).

Fair Employment Practices Act

The Act was amended so as to incorporate definitions and other changes made by the federal ADA Amendments Act. Title 28, Chapter 5, Section 28-5-6, as amended by Ch. 096 (S.B. 783) and Ch. 097 (H.B. 5949), L. 2009, effective July 9, 2009. Para 41-20,025.06.

Discrimination in Contracts Law

The law was amended so as to incorporate definitions and other changes made by the federal ADA Amendments Act. Title 42, Chapter 112, Section 42-112-1, as amended by Ch. 096 (S.B. 783) and Ch. 097 (H.B. 5949), L. 2009, effective July 9, 2009. Para 41-20,026.01.

Discrimination Against Persons with Disabilities

The law was amended so as to incorporate definitions and other changes made by the federal ADA Amendments Act. Also, A covered entity shall not use qualification standards, employment tests, or other selection criteria based on an individual's uncorrected vision unless the standard, test, or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and consistent with business necessity. Title 42, Chapter 87, Sections 42-87-1, 47-87-1.1, and 47-87-1.2, as amended and enacted by Ch. 096 (S.B. 783) and Ch. 097 (H.B. 5949), L. 2009, effective July 9, 2009. Paras 41-20,750.01, 41-21,750.015 and 41-21,750.016.

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Criminal Background Checks Law

Following a first offense conviction for a crime carrying a penalty of not more than 30 days imprisonment or a fine of $500, or both, an individual after 3 years from the date of the conviction may apply to the circuit court for an order expunging the records of the arrest and conviction. Title 22, Chapter 5, Article 11, Sections 22-5-910, as amended by Act 36 (H.B. 3022), L. 2009, effective June 2, 2009. Para 42-23,601.11.

Criminal Background Checks Law

If a facility providing services for the elderly and disabled employs a person pending a criminal history check, the facility shall ensure that the person has no direct contact with a consumer until the facility obtains the person's criminal history record information and verifies the person's employability. Title 4, Subtitle B, Chapter 250, Section 250.003, as amended by H.B. 2191, L. 2009, effective Sept. 1, 2009. Para 45-23,600.43.

Health Insurance Benefit Coverage Law

Texas has revised its definition of “utilization review” to include retrospective reviews of medical necessity, as well as determining the experimental or investigational nature of a health care service (Ch. 1330 (H. 4290), L. 2009, effective September 1, 2009, at TX ¶45-4000).

Criminal Background Checks Law

An employer, who is not a health care facility and is hiring an individual to provide services to an elderly or disabled person in the home of the elderly or disabled person, may obtain a background check of the individual from the Department of Health via the database of substantiated abuse and neglect cases. However, the employer must certify to the department that the employer intends to hire, or has hired, the individual whose information the employer has submitted to the department for the purpose of providing care to an elderly adult or a disabled person in the home of the elderly adult or disabled person. Title 26, Chapter 21, Section 26-21-9.5, as amended by Ch. 267 (H.B. 142), L. 2009, effective May 12, 2009. Para 46-23,600.15.

Criminal Background Checks Rules

The Utah Board of Education has adopted rules providing standards and procedures for requiring licensed public education employees to report certain types of arrests to employers and to require school districts and charter schools to have periodic background check and arrest-reporting policies for non-licensed public education employees. Rule 277-516, Sections R277-516-1 through R277-516-17, as adopted effective Aug. 7, 2009. Paras 46-23,650.11 through 46-23,650.17.

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Family Military Leave Rules

State employees who are a registered domestic partner of a member of the armed forces of the United States, National Guard, or reserves who have been notified of an impending call or order to active duty or have been deployed are entitled to a total of 15 days of unpaid leave per deployment. This leave can be taken when the military registered domestic partner has been notified of an impending call or order to active duty and before deployment or when the military registered domestic partner is on leave from deployment. Title 357, Chapter 357-31, Section 357-31-373, as amended effective Sept. 16, 2009. Para 50-22,502.01.

Parental Leave Rules

State Employees—Washington's family leave law generally is similar to, and runs concurrently with, the federal FMLA. But unlike the federal law, allows leave to be taken for the care of an employee's registered domestic partner with a serious health condition. Another significant difference is that Washington's family leave law does not address exigency leave or leave for a covered service member. Therefore, an employer is not required to provide exigency leave or leave for a covered service member for a registered domestic partner. Also, because the FMLA does not recognize registered domestic partners, an absence to care for an employee's registered domestic partner is not counted towards the 12 weeks of the FMLA entitlement. For example: If an employee uses twelve weeks of leave to care for his or her registered domestic partner during a twelve-month period, and no other FMLA leave was used, the employee is still entitled to his or her full twelve-week FMLA entitlement during the same twelve-month period because the leave used was provided for a purpose not covered by FMLA. However, if an employee uses twelve weeks of leave to care for their parent or for another FMLA - qualifying reason, then during that same twelve-month period the employer would not be required to provide additional leave under Washington's family leave law to care for the employee's registered domestic partner because the twelve-week entitlement under FMLA and Washington's family leave law has been exhausted. Title 357, Chapter 357-31, Sections 357-31-520, 357-31-525, and 357-31-535, as amended effective Sept. 16, 2009. Paras 50-22,501.13, 50-22,501.14, and 50-22,501.16.

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Veterans’ Preference Rule

Public Employment—Topic added. If no examination is administered prior to certification, the employer must refer the following individuals to the employing official as long as the individual meets the competencies and other position requirements: (a) eligible veterans; (b) surviving spouses or registered domestic partners of eligible veterans; or (c) spouses or registered domestic partners of honorably discharged veterans who have a service connected permanent and total disability. Title 357, Chapter 357-16, Section 357-16-110, as amended effective Sept. 16, 2009. Para 50-21,800.01.

Family, Medical and Parental Leaves Law

While the federal Family and Medical Leave Act generally allows for jury trials, no such right is implied under the Wisconsin equivalent, the state supreme court found. A 20-year employee missed three days of work and requested leave under the Wisconsin Family and Medical Leave Act (WFMLA) due to a medically diagnosed back ailment. Her request was denied for being untimely filed. A few months later, she again sought to have three different days approved for WFMLA leave, and once more she was denied. This time, she was terminated for attendance violations because she had not been examined by her doctor on the days she requested leave. The employee filed a complaint with the state administrative agency, and an administrative law judge found the termination was unlawful and ordered her reinstatement. The employee then sued the employer and requested a jury trial. The trial court found that under the WFMLA, there was no express right to a jury trial. The employee appealed, and the appellate court, noting this was a case of first impression, sought review by the state high court. The Wisconsin supreme court determined there was no “implied” right to a jury trial under the WFMLA. “Asking this court to discover an implied statutory right to trial by jury in situations where the legislature has not prescribed such a right and where the constitution does not afford such a right would open a can of worms,” the court added (Harvot v Solo Cup Co, WisSupCt, July 17, 2009, at WI ¶51-7000).

Health Insurance Benefit Coverage Law

The Wisconsin Department of Revenue has issued a personal income tax release concerning the taxability of employer-provided health insurance benefits provided to domestic partners. The value of such benefits is only excludible from an employee's taxable income if the domestic partner qualifies as a dependent of the employee. The release includes tests that must be met in order for an employee's domestic partner to qualify as a dependent (Wisconsin Department of Revenue News for Tax Practitioners, August 3, 2009, at WI ¶51-4000).