Even as the Trump administration rolled back numerous Obama-era regulations at the federal level and took more employer-friendly stances on a number of hot-button labor issues, 2017 also witnessed the continued proliferation of new laws and regulations in states and localities, particularly those whose legislatures are dominated by Democrats. Many of these policy changes came into force on January 1, while others will become effective later in 2018, meaning countless US organizations will have to adjust to a new and more complex regulatory landscape this year.
Minimum Wages Rise for Millions of Workers
To begin with, minimum wages rose on Monday in 18 states, including several that passed referenda to that effect in 2016. Arizona, California, Colorado, Hawaii, Maine, Michigan, New York, Rhode Island, Vermont, and Washington saw increases ranging from 35¢ to $1.00 per hour due to legislative or ballot measures, while the pay floors in Alaska, Florida, Minnesota, Missouri, Montana, New Jersey, Ohio, and South Dakota, which are pegged to inflation, rose automatically. The left-leaning Economic Policy Institute calculates that 4.5 million employees in total will see their pay increase thanks to these measures—though opponents of minimum wage hikes would argue that some of these employees will be laid off as their employers can no longer afford to pay them at the new rate.
California Keeps on Being California
With its huge labor market, diverse economy, and liberal government, California is a longstanding laboratory of progressive legislation, which serves as a bellwether for emerging regulatory trends and has an impact beyond the state’s borders as multi-state employers often opt to comply with California’s stricter rules nationwide for simplicity’s sake. A number of new laws came into effect in the Golden State this week that employers there need to be aware of. Mark S. Spring, a partner at Carothers DiSante & Freudenberger LLP, breaks down all of these changes at TLNT. Here are the changes in brief:
- Minimum wage: As mentioned above, California is among the many states whose minimum wages increased as the new year began, to $11 per hour for employers with 26 or more employees and $10.50 per hour for smaller employers. This effectively increases the minimum salary at which California employees in white-collar roles become exempt from overtime eligibility, as state law defines that as “no less than two times the state minimum wage for full-time employment.” A separate law specific to computer programmers establishes a separate, higher threshold for this occupation. For more details on California’s special overtime rules, see this explainer from SHRM.
- Ban the box: California employers with more than five employees are now prohibited from asking candidates about their criminal records until after a conditional job offer is made, and must assess candidates with criminal histories on an individual basis rather than instating blanket bans on hiring ex-convicts.
- Salary histories are history: Employers are no longer allowed to ask candidates about their salary histories in the hiring process or use that information in deciding whether to make an offer or in setting the new hire’s pay. Employers may, however, ask candidates about their salary expectations, and candidates may still voluntarily share their salary history information with recruiters as long as they are not prompted to do so. Massachusetts, Delaware, and Oregon, along with New York City, have also banned salary history inquiries, and these bans are beginning to have nationwide ripple effects, with some nationwide employers and recruitment platforms choosing to abandon these questions altogether.
- Parental leave mandate for small employers: The California Family Rights Act, the state analog to the federal Family and Medical Leave Act, requires employers to grant 12 weeks of unpaid family leave to employees who add a child to their family through birth, adoption, or foster care placement, provided that the employee has at least 12 months of service and has worked at least 1,250 hours in the year leading up to their leave. Previously, the act only applied to employers with 50 or more employees located within a 75-mile radius, but under an amendment passed last fall, this mandate now applies to those with 20 or more employees within the same radius.
- Saying “no” to immigration inspections: California employers are now prohibited from allowing federal immigration enforcement officials to enter non-public work areas or inspect their records without a warrant or subpoena. Employers who allow such immigration inspections without a valid court order face fines of up to $10,000. Governor Jerry Brown signed the bill making California the nation’s first “sanctuary state” in October and set the stage for a confrontation with the Trump administration, which has stepped up worksite raids and deportations of undocumented immigrants. Thomas Homan, the acting director of Immigration and Customs Enforcement, said on Tuesday that he intended to step up enforcement in California and even called for the arrest of public officials who enact such laws.
- Expanded scope of harassment training: California organizations with 50 or more employees were already required to provide at least two hours of training to all employees in supervisory roles on sexual harassment and bullying. This training is now also required to cover harassment based on sexual orientation and gender identity.
Paid Family Leave Becomes Mandatory in New York
In 2016, New York State legislators and Governor Andrew Cuomo sealed a budget deal that would raise the minimum wage statewide and also mandate paid parental leave for most employees. That mandate came into effect this week. New York State Assembly member John T. McDonald III, a backer of the explains how the paid family leave program works at the Albany Times Union:
New York’s program is being phased in, ensuring employers have enough time to adjust and implement it. In 2018, workers will be eligible for eight weeks of job-protected paid leave at 50 percent of their average weekly wage up to 50 percent of the statewide average weekly wage. In 2019, it will increase to 10 weeks of leave at 55 percent of the worker’s average weekly wage up to 55 percent of the statewide average weekly wage, then to 60 percent of the worker’s average weekly wage up to 60 percent of the statewide average weekly wage in 2020. By 2021, it will rise to 12 weeks at 67 percent of the worker’s average weekly wage up to 67 percent of the statewide average weekly wage.
To cover the costs of the program, private employers will secure paid family leave insurance and premiums will be fully funded by employees through small payroll deductions. The maximum payroll deduction will be 0.126 percent of the employee’s weekly wage or the state’s average weekly wage – currently no more than $1.64 per week. Public employers may also opt in to the program. Employees are eligible after working at least 20 hours per week for 26 weeks, or less than 20 hours per week for 175 days.
New York’s new law is particularly generous to employees, Jessica Mason points out at Slate: It applies to both salaried and hourly employees, including many part-time workers, and also makes paid leave available to freelancers, while its funding mechanism enables small businesses to reap the benefits of offering employees paid leave. It also specifically protects employees from retaliation by their managers for using their parental leave entitlement, which advocates say will make new parents less hesitant to take the time off they need and deserve.
Sexual Harassment Training for Illinois Public Servants and Lobbyists
Some Illinois employers will have to revamp their sexual harassment policies under a law signed by Governor Bruce Rauner last month, which went into effect at the start of the year. Specifically, lobbyists in the state must complete an annual sexual harassment training program this year, while organizations that employ lobbyists must have a written policy that prohibits sexual harassment, prohibits retaliation for reporting it, and clearly spells out reporting procedures and consequences for violators. State government officials and employees are also required to undergo sexual harassment training at least once a year, starting this year. The act also directs the Illinois Department of Human Rights to establish and maintain a sexual harassment hotline where workers in the state can confidentially report harassment and access resources such as counseling and advice on how to file a formal complaint. Shawn D. Fabian, an attorney with Sheppard Mullin in Chicago, provides more detail on the new requirements at SHRM.
While Illinois is only one state and this new policy does not apply to all employers, it is reasonable to expect that other states will be looking into their own sexual harassment laws and regulations soon, given the widespread attention this issue is currently receiving. Employers can anticipate more policy changes like this one (and California’s above) in the coming year. All the more reason for organizations throughout the country to review and, if needed, strengthen their policies to protect employees from sexual harassment without delay.
Hawaii’s New Benefit for Caregivers
The Kupuna Caregivers Assistance Act, a bill signed into law last summer in Hawaii to provide financial support for working caregivers, went into effect in December, and will help over 150,000 Hawaiians who both work full-time and care for a “kupuna,” the Hawaiian word for elder or grandparent, Amanda Eisenberg reports at Employee Benefit News:
Employees working more than 30 hours a week while also caring for an elderly relative will receive a daily stipend of up to $70 to offset elder care costs, per the new law. The money can be used on anything that helps the caregiver meet his or her responsibilities without having to sacrifice work. That can include adult day care, chore services, home-delivered meals, homemaker services, personal care, respite care or transportation.
Those employees must also provide care to a U.S. citizen or qualified undocumented person who is 60 years or older, not covered by any comparable governmental or private home and community-based care service, doesn’t reside in a long-term care facility and has at least two impairments that affect daily living and instrumental activities or substantive cognitive impairment requiring substantial supervision, according to the law.
Paid Sick Leave in Washington and Rhode Island
The state of Washington passed a law in 2016 to allow employees there to accrue one hour of paid sick leave for every 40 hours they work, which they may use to obtain medical care for themselves or a family member, for domestic violence issues, or to cover lost pay if their workplace or their child’s school closes due to a health issue. Employees can carry over up to 40 hours of accrued sick leave from one year to the next. That mandate went into effect at the start of this year.
In Rhode Island, a paid sick leave law enacted last October will come into effect later this year. According to attorneys from Morgan, Brown & Joy LLP, this mandate will apply to employers of 18 or more people; similar to Washington’s law, Rhode Island’s will also allow employees to accrue sick leave at a rate of one hour for every 35 hours worked. Employees can “bank” up to 24 hours this year, 32 hours in 2019, and 40 hours a year from 2020 on. Eligible employees will begin accruing sick leave when the law comes into effect on July 1.
These states join a growing number of jurisdictions with paid sick leave mandates, including Arizona, California, Connecticut, Massachusetts, Oregon, and Vermont, as well as cities including New York, Washington, DC, San Francisco, and St. Paul, Minnesota. Maryland legislators sought to pass a similar law last year, but Governor Larry Hogan vetoed the bill.
In a roundup of state legislative changes big and small, The Hill’s Reid Wilson points to some other new policies that stand to affect employers and employees. In Vermont, for example, employers are now prohibited from asking employees for the passwords to their social media accounts. Other changes affect the services for which health insurance companies must provide coverage: In Connecticut, insurers are now required to cover treatment for substance abuse disorders. Women in Nevada are now guaranteed access to contraceptives, while in Maryland and Virginia, they are entitled to birth control with no out-of-pocket costs.