State Employment Law Updates Digest September 2017

California

California Background Checks

The California Constitution provides for a right to privacy, and existing statutory law provides certain privacy protections for employment records. Existing law requires an employer to disclose employment information relating to a current or former employee who is an applicant for a peace officer position, and who is not currently employed as a peace officer, upon request of a law enforcement agency, if certain conditions are met.

The state has enacted a session law that will extend those employer disclosure requirements to information relating to a current or former employee who is an applicant for a position other than as a sworn peace officer with a law enforcement agency (Ch. 89 (A. 1339), L. 2017).

Colorado

Colorado Wage Payment

The Department of Labor and Employment, Division of Labor, has adopted revised Wage Protection Act Rules 7 CCR 1103-7. The amended rules were approved on July 31, 2017, published in the Colorado Register on August 10, 2017, and are effective as of September 1, 2017. These rules implement the Wage Protection Act of 2014.

Delaware

Delaware Labor Relations

Delaware law prohibits human trafficking and involuntary servitude, including forced labor. This law is amended to include advertising and soliciting an individual in furtherance of forced labor as a prohibited human trafficking violation (Ch. 110 (S. 75), L. 2017).

Also, The Public Employment Relations Act is amended to include non-uniformed correctional employees in a classified bargaining unit comprised of correctional facility employees, for purposes of bargaining terms of compensation, such unit being “correctional supervisors and non-uniformed correctional employees who are employed in a secure Department of Correction facility or who have inmate contact which is composed of correctional lieutenants, staff lieutenants, correctional captains, non-uniformed correctional employees who are employed in a secure Department of Correction facility or who have inmate contact and similar occupations.” (Ch. 124 (H. 214), L. 2017).

Hawaii

Hawaii Family and Medical Leave

The Hawaii Family Leave Law is amended to extend job protections when an employee requests leave to care for a sibling with a serious health condition. This law provides employees who work for employers with 100 or more employees with up to four weeks of unpaid leave, annually, upon the birth or adoption of an employee’s child, or to care for the employee’s child, spouse, reciprocal beneficiary, sibling, or parent with a serious health condition (Act 128 (H. 213), L. 2017).

Illinois

Illinois Disaster and Emergency Services Leaves

The Volunteer Emergency Worker Job Protection Act is amended by adding a new part that prohibits a public employer from disciplining an employee who is a volunteer emergency worker if the employee, in the scope of acting as a volunteer emergency worker, responds to an emergency phone call or text message during working hours that requests that person’s volunteer emergency services. This does not apply to a person employed by a public or private vehicle service provider and who is in the course of performing emergency services as Emergency Medical Services personnel. This part does not diminish or supersede an employer’s written workplace policy, a collective bargaining agreement, an administrative workplace policy; a collective bargaining agreement; administrative guidelines; or other applicable written rules administered by the employer, or other applicable written rules administered by the employer. Existing written policies governing the use of cell phones shall prevail and control (P.A. 100-0324 (S. 1895), L. 2017, effective January 1, 2018.

Illinois Drug and Alcohol Testing

Law enforcement agencies must adopt a written policy regarding drug and alcohol testing following an officer-involved shooting. The policy must include the requirements that: (1) each law enforcement officer involved in an officer-involved shooting must submit to drug and alcohol testing; and (2) the testing be completed as soon as practicable after such shooting but no later than the involved officer’s shift or tour of duty. “Officer-involved shooting” means any instance when a law enforcement officer discharges his or her firearm, causing injury or death to a person or persons, during the performance of his or her official duties or in the line of duty. The Police and Community Relations Improvement Act, added by Public Act 100-0389 (S. 58), L. 2017, became effective on August 25, 2017. 

Illinois Genetic Testing

Illinois’ Genetic Information Privacy Act provides that an employer shall not use genetic information or genetic testing in furtherance of a workplace wellness program benefiting employees unless (1) health or genetic services are offered by the employer, (2) the employee provides written authorization, (3) only the employee or family member if the family member is receiving genetic services and the licensed health care professional or licensed genetic counselor involved in providing such services receive individually identifiable information concerning the results of such services, and (4) any individually identifiable information is only available for purposes of such services and shall not be disclosed to the employer except in aggregate terms that do not disclose the identity of specific employees.

On August 25, 2017, Governor Bruce Rauner signed a law amending the Genetic Information Privacy Act to prohibit an employer from penalizing an employee who does not disclose his or her genetic information or does not choose to participate in a program requiring disclosure of the employee’s genetic information (P.A. 100-396 (S. 318), L. 2017). 

Illinois Minimum Wage

A new exemption from coverage as an employee under the Illinois Minimum Wage Law is added for an employee employed as a player who is 28 years old or younger, a manager, a coach, or an athletic trainer by a minor league professional baseball team not affiliated with a major league baseball club, if (A) the minor league professional baseball team does not operate for more than 7 months in any calendar year or (B) during the preceding calendar year, the minor league professional baseball team’s average receipts for any 6-month period of the year were not more than 33 1/3% of its average receipts for the other 6 months of the year (Public Act 100-0192 (H. 3631), L. 2017).

Also, the Illinois Freedom to work Act prohibits employers from entering into a covenant not to compete with low-wage employees. This law is amended to clarify that low-wage employees are those employees whose earnings do not exceed the greater of (1) the hourly rate equal to the minimum wage required by the applicable federal, state or local minimum wage law or (2) $13.00 per hour (Public Act 100-0225 (S. 858), L. 2017).

Illinois Noncompete Agreements

The Illinois Freedom to Work Act has been amended to provide that “low-wage employee” means an employee whose earnings do not exceed the greater of the hourly rate equal to the minimum wage required by the applicable federal, state, or local minimum wage law or a specified amount per hour.

Under prior law, the definition of “low-wage employee” was an employee who earns the greater of (1) the hourly rate equal to the minimum wage required by the applicable federal, state, or local minimum wage law or (2) $13.00 per hour (P.A. 100-225 (S. 858), L. 2017, enacted and effective August 18, 2017). 

Illinois Prevailing Wages

The Illinois Prevailing Wage Act is amended to provide that for prevailing wage determinations, if the Department of Labor ascertains the prevailing rate of wages for a public body, the public body may satisfy the newspaper publication requirement by posting on the public body’s website a notice of its determination with a hyperlink to the prevailing wage schedule for that locality that is published on the official website of the Department of Labor (Public Act 100-0154 (H. 3120), L. 2017). 

Illinois Whistleblower Protection

The Illinois False Claims Act relates to liability for false claims against the state for money or property and also protects employees from discharge, discipline or discrimination in employment when filing a proceeding or with regards to testimony involving this Act.

This Act is amended to revise civil penalties for a person who knowingly makes, uses, or causes to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the state, or knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the state, in an amount not less than the minimum and not more than the maximum amount allowed for a civil penalty for a violation of Act, as adjusted for inflation, plus three times the amount of damages the state sustains because of the act of that person (Public Act 100-0452 (S. 1577), L. 2017, effective August 25, 2017).

Minnesota

Minnesota Minimum Wage

Minnesota’s minimum-wage rates will be adjusted for inflation beginning January 1, 2018, Under Minnesota law, the commissioner of the Department of Labor and Industry is required to determine and announce the inflation-adjusted minimum-wage rate each year by August 31. This year, the change in the price deflator is an increase of 1.56 percent. Applying this percentage increase to Minnesota’s current minimum-wage rates, the large-employer minimum wage, now $9.50, will increase by 15 cents to $9.65. Other state minimum wages, including the small-employer, youth and training wages, as well as the summer work travel exchange visitor program wage, which are all now $7.75, will increase by 12 cents to $7.87. Large employers are those businesses with annual gross revenues of $500,000 or more. Smaller employers are those with annual gross revenues of less than $500,000 (Minnesota Department of Labor and Industry, News Release, August 17, 2017, http://www.dli.mn.gov/MinWageIndex17.asp).

New Hampshire

New Hampshire Minimum Wage

The minimum wage law is amended with regard to tip pooling.
New Hampshire law states that tips are to be retained by employees who receive gratuities, unless such employees voluntarily and without coercion agree to tip pooling or tip sharing arrangements. Effective September 3, 2017, this law is amended to provide that the law does not preclude employees who participate in a tip pool from agreeing, voluntarily and without coercion, to provide a portion of the common tip pool to other employees, regardless of job category, who participated in providing service to customers (Ch. 198 (S. 37), L. 2017).

New York

New York Health Insurance Benefit Coverage

On August 16, 2017, Governor Andrew M. Cuomo announced that health insurers cannot discriminate or deny coverage based on gender identity. This action ensures that transgender or gender nonconforming individuals receive coverage regardless of whether they present as the gender to whom the service is typically or exclusively provided. A Department of Financial Services circular letter issued on August 16, 2017 (https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/CircularLetterTransgenderCoding.pdf) instructs health insurers to take reasonable steps, including requesting additional information, to determine whether the insured is eligible for the services prior to denying a claim.
This announcement builds upon Governor Cuomo’s comprehensive actions to support health insurance access for all New Yorkers, including previous guidance instructing insurers that they may not deny medically necessary treatment for gender dysphoria (New York State Office of the Governor Press Release, August 16, 2017, http://www.governor.ny.gov/news/governor-cuomo-takes-decisive-action-ensure-insurance-coverage-transgender-and-gender.

New York Minimum Wage

The living wage for workers contracted by Nassau County is $16.07 per hour, or $13.98 per hour with health benefits, effective August 1, 2017, through July 31, 2018.

Rochester’s living wage will be calculated on an hourly basis as paying $11.85 (effective through June 30, 2018) to covered employees who are offered health insurance benefits by the covered employer or business assistance beneficiary, and $13.23 (effective through June 30, 2018) to covered employees who are not offered health insurance benefits.

North Carolina

North Carolina Employee Misclassification

The Employee Fair Classification Act is enacted, effective December 31, 2017. The Act establishes the Employee Classification Section within the Industrial commission. The Section will have the duty of being available during business hours to receive reports of employee misclassification, by telephone, in writing or by electronic communication; investigate reports of employee misclassification; coordinate with state agencies in recovering any back taxes, wages, benefits, penalties, or other monies owed as a result of such misclassification; provide information to state agencies to facilitate possible violations; create a publicly available notice that includes the definition of employee misclassification; and develop methods and strategies to inform and educate employers, employees and the public about proper classification of employees and the prevention of employee misclassification (Session Law 2017-203 (S. 407), effective December 31, 2017).

North Carolina Minimum Wage

Employers covered under the North Carolina Wage and Hour Act are required to display a poster summarizing the major provisions of the Act in every covered establishment. Effective December 31, 2017, this poster must also include notice relating to employee misclassification that indicates the following in plain language: (1) Any worker who is defined as an employee by either G.S. 95-25.2(4) (Wage and Hour Act), 143-762(a)(3) (Employee Fair Classification Act), 96-1(b)(10) (Employment Security Law), 97-2(2) (Workers’ Compensation Act), or 105-163.1(4)(Tax/Estimated Income Tax Withholding) shall be treated as an employee unless the individual is an independent contractor any worker defined as an employee by either Sections 95-25.2(4), 143-762(a)(3); (2) Any employee who believes that the employee has been misclassified as an independent contractor by the employee’s employer may report the suspected misclassification to the Employee Classification Section within the Industrial Commission; (3) The physical location, mailing address, telephone number, and e-mail address where alleged incidents of employee misclassification occurred may be reported to the Employee Classification Section within the Industrial Commission (Session Law 2017-203 (S. 407), effective December 31, 2017).

Oregon

Oregon Maximum Hours and Overtime

Oregon Governor Kate Brown on August 8, 2017, signed legislation that adds substantial work scheduling stability to employees working in the retail, hospitality, and food service establishments with 500 or more employees worldwide, including chains and integrated enterprises.

The legislation requires covered employers to provide new employees with a written “good faith estimate” of their work schedules at the time they are hired. Employers will also be required to provide employees with a work schedule in writing at least seven calendar days before the first day of the work schedule under the version of the legislation that will be operative July 1, 2018. An amendment increases the advance notice to 14 calendar days, operative July 1, 2020. Employers will be required to compensate employees for employer-requested changes to a written work schedule made without the required advance notice, although the law provides a number of exceptions.

Absent an employee’s request or consent, an employer may not schedule or require an employee to work during the following “rest periods” the first 10 hours following the end of the previous calendar day’s work shift or on-call shift; or the first 10 hours following the end of a work shift or on-call shift that spanned two calendar days.

The law does not apply to salaried employees, workers supplied to an employer by a worker leasing company, or employees of a business that provides services to or on behalf of an employer (Ch. 691 (S.B. 828), L. 2017). 

The Bureau of Labor and Industry has issued Technical Assistance FAQs on the measure regarding predictive employee scheduling, at http://www.oregon.gov/boli/TA/Pages/Predictive-Employee-Scheduling.aspx.

Also, law relating to work time limits is amended and new law is added, directing employers in certain industries (manufacturing; sawmills, planing mills, shingle mills and logging camps) to pay the greater of daily or weekly overtime when an employee is eligible for both in the same workweek. “Workweek” means a fixed period of time established by an employer that reflects a regularly recurring period of 168 hours or seven consecutive 24-hour periods. A workweek may begin on any day of the week and any hour of the day and need not coincide with a calendar week. The beginning of the workweek may be changed if the change is intended to be permanent and is not designed to evade overtime requirements.

For other employments, the Commissioner of the Bureau of Labor and Industries may adopt rules prescribing minimum conditions of employment, excluding minimum wages, in any occupation as may be necessary for the preservation of the health of employees. The rules may include, but are not limited to, minimum meal periods and rest periods, and maximum hours of work, but not less than eight hours per day or 40 hours per workweek; However, after 40 hours of work in one workweek overtime may be paid, but in no case at a rate higher than one and one-half times the regular rate of pay of the employees when computed without benefit of commissions, overrides, spiffs and similar benefits. Effective January 1, 2018, an exemption from the regulation of hours of employment of employees engaged in production, harvesting, packing, curing, canning, freezing or drying any variety of agricultural crops, livestock, poultry or fish is removed, and maximum hour and overtime requirements are put in place for these occupations as well as for seafood processors (Ch. 685 (H.B. 3458), L. 2017, with multiple effective dates (August 8, 2017, and January 1, 2018). 

The Bureau of Labor and Industry has issued Technical Assistance FAQs on the measure and its impact on manufacturing and canneries and other industries, at http://www.oregon.gov/boli/TA/Pages/Daily-and-Weekly-Overtime.aspx.