July Brings Legal Changes for Employers in Many States
Important notice to ambulance service employers based in the state of Oregon: there is a new statewide transit tax taking effect on July 1, 2018. Beginning July 1st, employers must start withholding a tax of 1/10th of 1% from the wages of Oregon residents or from non-residents who perform services in Oregon. The Department of Revenue has published detailed information on the statewide tax with a list of available resources to assist employers with compliance.
Effective July 1, 2018, Iowa employers may lower their standard for taking employment action for positive alcohol tests from the old state standard of .04 to .02. Iowa has one of the strictest employment drug and alcohol testing requirements in the country. Employers are required to have a written policy that is distributed to all employees and job candidates for their review. Employers must establish a drug and alcohol awareness program alerting employees of the dangers of drug and alcohol use in the workplace, and most employees must be provided an option to enter a rehabilitation program instead of being disciplined. In addition, all supervisory staff must attend a two-hour initial drug and alcohol training and a one-hour annual refresher.
Rhode Island has followed a growing list of states and municipalities that have enacted paid sick leave for employers with 18 or more employees. In October, the Health and Safe Families and Workplaces Act was signed by Governor Gina Raimondo. The new paid sick leave law takes effect July 1, 2018. Under the new law, employees will accrue one hour of paid sick time for every 35 hours worked, up to a maximum of 24 hours in a calendar year in 2018. That rate will increase to 32 hours in 2019 and 40 hours in 2020.
Under the new law, employers must allow employees to use paid sick time for the employee’s or employee’s family members illness, injury, or health condition; when the employee’s workplace or child’s school is closed due to a public health emergency; or for reasons related to domestic violence, sexual assault, or stalking. Employers cannot take adverse employment action against employees utilizing leave under this Act.
Employers need to prepare by amending any relevant paid time off policies, ensuring that there is an adequate mechanism for tracking the accrual and use of paid sick leave, and educating all management staff on the provisions of the new paid sick time law to ensure compliance. The new Sick Time Regulations provide additional compliance guidance.
Effective July 1, 2018, a new law in Vermont prohibits employers from making salary history inquiries from job candidates. Vermont joins several other states and municipalities that have enacted pay equity measures.
Joining the State of Vermont, the City of San Francisco has enacted a ban on asking job applicants about their salary or pay histories. The Parity in Pay Ordinance, signed by May Ed Lee, takes effect on July 1, 2018. The Ordinance bans employers, including City contractors and subcontractors, from considering current or past salaries in hiring candidates for employment. In addition, the Ordinance prohibits employers from asking job applicants about pay history or disclosing a current or former employee’s salary history without their authorization. A statewide ban on asking applicants about their pay histories took effect this past January.
It is recommended that employers in all states, whether legally prohibited or not, remove any reference on their job applications to an employee’s current or past wage/salary. In addition, employers should amend their pre-hire process to eliminate any pay history inquiries. This will provide employers with the best protections against allegations of pay discrimination claims.
Back in August, 2016, Governor Baker signed An Act to Establish Pay Equity (MEPA) which takes effect on July 1, 2018. The new law is aimed at ending discrimination in the workplace by ensuring that individuals who perform “comparable” work earn competitive salaries. Additionally, the bill prohibits employers from making salary or wage history inquiries with job candidates and provides protections for employees to freely discuss their salaries with other employees.
The new law is aimed at preventing the perpetuation of past employer discriminatory pay practices by prohibiting the employer from basing a salary decision on the candidate’s current or past salary. Employers need to ensure that there are no inquiries on their employment applications or requested during the pre-hire process. Additionally, employers should amend any policies and procedures that might discourage employee discussions about wages.
Lastly, employers should perform a pay equity audit to identify potential wage disparities that may exist in their workplace. Employers who perform a good-faith, reasonable self-evaluation to identify pay disparities will be able to assert an affirmative defense to claims of violations of the Act. The Massachusetts Attorney General has issued guidance and a pay equity toolkit to assist employers with compliance.
Effective July 1, 2018, amendments to the California Fair Employment and Housing Act (FEHA) will expand the national origins protections for employer discriminatory practices for applicants and employees to include:
- physical, cultural, or linguistics characteristics associated with a national origin group;
- marriage to or association with persons of a national origin group;
- tribal affiliation;
- membership in, or in association with, an organization identified with or seeking to promote the interests of a national origin group;
- attendance or participation in schools, churches, temples, mosques, or other religious institutions generally used by persons of a national origin group; and
- name that is associated with a national origin group
The Regulations provide protections that include prohibitions on employees adopting “English only” language rules in the workplace, unless the restriction is justified by business necessity, narrowly tailored, and was meaningfully communicated to employees. Discrimination based on an employee’s accent, height and weight (unless job-related and consistent with business necessity), and immigration status.
Last year we notified AAA members that they must begin electronically reporting their workplace injury data to OSHA starting December 1, 2017 for 2016. This is just a reminder to all employers that they must electronically report their 2017 workplace injury data through the OSHA Injury Tracking Application (ITA) no later than July 1, 2018. Previously, for employers who had state-level work injury provisions, OSHA did not require injury reporting until the state enacted the appropriate tools to collect the injury data. This has changed, as OSHA announced on April 30, 2018 that employers in states that have not completed the adoption of a state rule yet must also report their 2017 injury data through the OSHA ITA. If any member has not set up their account with OSHA on the ITA, we strongly suggest that you do so immediately. The AAA can assist members in ensuring that they are compliant with this reporting requirement.
Georgia has enacted the Hands-Free Georgia Act (House Bill 673) which becomes effective July 1, 2018. The law makes it illegal for all motor vehicle drivers to “physically hold or support, with any part of his/her body” a wireless device. In addition, drivers are prohibited from writing, sending, or reading any text-based communications, including instant messages, email, or internet data usage. The law requires that a driver utilize an earpiece or hands-free device for all purposes while driving and may not touch their device. This includes utilizing any device for navigational purposes, even while stopped at a traffic signal.
There are exceptions to the new law for reporting traffic accidents: medical emergencies, fires, criminal activity, or hazardous road conditions. The exceptions do include first responders, including EMS agencies during the performance of their official duties. I believe that it is important for agencies to provide very clear communications regarding mobile device usage. I strongly suggest that any employee guidance states that the use of hand-held devices be limited to what is required to facilitate or affect patient care. It is recommended that when the use of a device is necessary, the technician or dispatcher make the notification, provided it does not interfere with monitoring or providing direct care to the patient. For more information or guidance visit the Heads Up Georgia website.
South Dakota has enacted a new Data Breach Notification Law (SB62) for any entity conducting business in South Dakota that has or retains computerized personal or protected information of South Dakota residents. The law has a very broad definition of personal information and includes “social security numbers, driver’s license numbers, credit card or financial information, health information, identification numbers assigned by an employer for authentication purposes, username or email addresses with passwords, security questions, etc.”
The breach notification obligation attaches when the information holder reasonably believes that personal or protected information has been acquired by an unauthorized person. The law states that they must notify the affected individual within 60 days. Breaches affecting 250 or more individuals must also be reported to the South Dakota Attorney General. If the information holder reasonably believes that the breach will not likely result in harm to the affected individual, no disclosure is necessary provided they investigate and maintain documentation of the investigation for at least three years. Employers should review their data privacy policies and practices to ensure they comply with the new law.
Starting July 1, 2018, the State of Vermont has legalized recreational marijuana under a measure passed by the Vermont legislature (H.B. 511). The new law permits residents to grow and possesses up to one ounce of marijuana without facing criminal penalties. This law does not prohibit employers from having policies that prohibit marijuana use. The law also provides that employers do not have to accommodate the use or transportation of marijuana in the workplace. However, employers are advised to review their current workplace drug policies and practices to ensure that their practices are consistent with the new state law.
Vermont has a long-standing prohibition of random drug testing of employees, except when required or permitted under Federal law. Under Federal law, Federal contractors and grantees must maintain a drug-free workplace under the Drug Free Workplace Act. It is important that employers seek legal consultation if an employee notifies the employer that they are using marijuana for a condition that might qualify as a “disability” under the Americans with Disabilities Act (ADA). The Vermont Attorney General has published a Guide to Vermont’s Laws on Marijuana in the Workplace to assist employers with compliance.