State Employment Law Update November 2017

Arkansas

Arkansas Unemployment Insurance

For 2018, rates in the basic schedule are increased by a 0.3% stabilization tax. They range from 0.4% to 6.3%. New employers pay 3.2% in 2018, also including the above tax. Note that employers that have been paying at the 6.0% rate for six years will have an additional 8.0% tax added to their rate.

California

California Equal Pay

The California Equal Pay Act is amended effective January 1, 2018, to extend coverage to public-sector employees. The measure adds a definition of “employer” to include “public and private employers.” The misdemeanor penalty provision for violations would not apply to public employers, however (Ch. 776 (A. 46), L. 2017).

California Wage Payment

For private construction project contracts entered into on or after January 1, 2018, a direct contractor making or taking a contract in California for the erection, construction, alteration, or repair of a building, structure, or other work, is to assume, and will be liable for, debt owed to a wage claimant that is incurred by a subcontractor, at any tier, acting under, by or for the direct contractor for the wage claimant’s performance of labor.

Liability applies to unpaid wages, fringe benefits and other benefits or contributions, including interest owed, but does not extend to penalties or liquidated damages. A third party owed fringe or other benefit payments or contributions on a wage claimant’s behalf, as well as a joint labor-management cooperation committee, may bring a civil action against a direct contractor to enforce liability.

Also, new law has been enacted to require commission wages paid to any employee who is licensed under the Barbering and Cosmetology Act to be due and payable at least twice during each calendar month on a day designated in advance by the employer as the regular payday and would authorize the employee and employer to agree to a commission in addition to the base hourly rate.

Commission wages are wages paid to an employee who is licensed under that act for providing services for which a license is required when paid as a percentage or a flat sum portion of the sums paid to the employee by the client receiving the service, and for selling goods, provided that the employee is paid a regular base hourly rate of at least two times the state minimum wage rate in addition to commissions paid. The employee may be compensated for rest and recovery periods at a rate of pay not less than the employee’s regular base hourly rate

California Whistleblower Protection

The California Whistleblower Protection Act authorizes the California State Auditor’s Office to conduct an investigative audit upon receiving information that an employee or state agency has engaged in an improper governmental activity. The auditor is required under the Act to establish a means of submitting allegations of improper governmental activity and generally requires the auditor to keep such investigations confidential, including all investigative files and work product.

This law has been amended to require that the auditor create an alternative system for submission to an independent investigator of allegations of improper governmental activity engaged or participated in by employees of the office

California Workers’ Compensation

New law has been added to California’s workers’ compensation law to require employers to provide immediate support from a nurse case manager to employees injured in the course of employment by an act of domestic terrorism, provided the Governor declares a state of emergency in connection with the act of domestic terrorism

Connecticut

Connecticut Discrimination

Connecticut law prohibiting discrimination in employment has been expanded to also prohibit discrimination based on status as a veteran.

Connecticut Military Leave

Military leave and reemployment rights and protections for members of the armed forces and reserves have been extended to also apply to the National Guard of any state

Delaware

Delaware Unemployment Insurance

For 2018, the taxable wage base for Delaware is $16,500, a decrease of $2,000 from the 2017 taxable wage base amount of $18,500.

Louisiana

Louisiana Sexual Orientation Discrimination

An executive order issued by Louisiana Governor John Bel Edwards barring state agencies from discriminating on the basis of sexual orientation or gender identity (JBE 2016-11) was struck down by the state appeals court. Affirming a state trial court order enjoining the governor from implementing his executive order, which also would have extended to all state services and contracts, the appeals court agreed with the state attorney general’s conclusion that there were no constitutional or statutory provisions affording such protections (under either state or federal law), so the governor was impermissibly attempting to legislate, a violation of separation of powers. The governor was permanently enjoined from enforcing the order (Louisiana Department of Justice v. Bel Edwards, November 1, 2017, Higginbotham, T.)

Maryland

Maryland Minimum Wage

The state’s “Living Wage Law” has been amended to reflect updated wage determinations. Effective September 28, 2017, the Living Wage is $13.79 per hour in Tier 1 areas and $10.36 in Tier 2 areas, depending on the location where the services are being performed or on the location benefiting from the work. The Living Wage rates change each year and are published in July at the beginning of the state’s fiscal year and effective 90 days from the end of the state fiscal year in June.

Tier 1 is comprised of Anne Arundel County, Baltimore City, Baltimore, Howard, Montgomery, and Prince George’s Counties 2. Tier 2 consists of any county in the state not included in the Tier 1 area for each hour worked on that contract. The Living Wage ensures that the hourly rate earned by an individual working full-time on a state project valued at either $100,000 or more if the contractor has more than 10 employees or $500,000 if the contractor has 10 or few employees is sufficient to provide the necessities and comforts essential to an acceptable standard of living

State of Maryland, Department of Labor, Licensing and Regulation, Division of Labor and Industry, Living Wage Unit, Notice to Employees.

Also, the Montgomery County Council on November 7, 2017, approved Bill 28-17 to increase the county’s minimum wage to reach $15 per hour by July 1, 2021, for large employers with 51 or more employees. Mid-sized employers with between 11 and 50 employees must raise wages to at least $15 per hour on July 1, 2023.

Small employers with 10 or fewer employees must pay a $15 minimum wage by July 1, 2024. Non-profits with 501(c)(3) designations and eligible service providers must raise the minimum wage to $15 per hour by July 1, 2023, unless they are considered a small employer. The minimum wage would be adjusted for inflation starting July 1, 2022.

The measure also provides for an opportunity wage, equal to 85% of the county minimum wage, for employees under the age of 20 for the first six months of employment. Currently, the minimum wage in the county is $11.50 per hour. The bill now goes to County Executive Ike Leggett for his signature. County Executive Leggett issued a statement on November 7 that he would sign the bill (A November 9, 2017, press release gives a signing date of November, 13, 2017)

Montgomery County Council, Press Release, November 7, 2017

Montgomery County Government Press Release, November 7, 2017

Montgomery County Government Press Release, November 9, 2017

New York

New York Health Insurance Benefit Coverage

The state’s insurance laws have been amended with respect to health care coverage for neonatal intensive care services.

New York Minimum Wage

Emergency regulations have been adopted to amend the state’s minimum wage orders (Miscellaneous Industries and Occupations) to clarify that hours worked may exclude meal and sleep times for home care aides who work shifts of 24 hours or more.
12 NYCRR 142-2.1, 142-3.1 and 143.7 are amended effective October 6, 2017, 43 N.Y. St. Reg. 5 (Oct. 25, 2017). Emergency rulemaking expires January 3, 2018.

New York Smoking in the Workplace

The New York State Clean Indoor Air Act has been amended to include use of electronic or e-cigarettes and vaping as prohibited wherever smoking is prohibited in places of employment and other indoor and outdoor areas, effective November 22, 2017.

North Carolina

North Carolina Fair Employment Practices

Governor Roy Cooper signed Executive Order No. 24 to prohibit discrimination in his administration on the grounds of race, color, ethnicity, sex, National Guard or veteran status, sexual orientation, and gender identity or expression in employment. The executive order, which requires those doing business with the state to prohibit the same, went into effect immediately upon the governor’s October 18 signing. “By requiring companies that contract with the state to have non-discrimination policies, the state can promote protections for more North Carolinians outside of state government,” Cooper said. “We’ve worked with the business community, advocates for the LGBT community and other North Carolinians who know our state is stronger because of our diversity, and I will keep working to make our state a welcoming and inclusive place.”

Oklahoma

Oklahoma Military Leave

Military leave and reemployment rights have been amended to limit paid leave for state and local government employees to 240 hours in a federal fiscal year.