US President Donald Trump’s agenda of expanded detention and deportation of undocumented immigrants has been frustrated by the refusal of some states and cities to participate the federal authorities’ crackdown, which opponents say unfairly targets non-criminals and makes immigrant communities less safe by eroding their trust in the police. Last September, California passed a law prohibiting employers in the state from voluntarily allowing Immigration and Customs Enforcement (ICE) agents onsite to conduct immigration inspections or to access employee records without a warrant or court order.
In an apparent response to the state’s defiance, ICE has stepped up enforcement raids in California this year, as well as other jurisdictions that have passed “sanctuary” laws barring local authorities from cooperating with federal agents in immigration enforcement. These laws have enraged Trump and ICE director Thomas Homan, who have accused legislators in these areas of endangering citizens and officers to protect undocumented criminals. California lawmakers counter that they are merely insisting that ICE agents show documents they are already federally required to present before conducting inspections.
This tension between Sacramento and Washington has put California employers between a rock and a hard place, Nour Malas reports at the Wall Street Journal, as they receive conflicting instructions from state and federal authorities and fear being targeted by one for cooperating with the other. In response to the recent wave of raids, Democratic State Attorney General Xavier Becerra warned employers that they could face legal action by the state if they voluntarily hand over information about their employees to ICE.
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A new Maryland law requiring most employers in the state to provide paid sick leave for their employees came into effect this week after the state House rejected a Senate effort to delay it until July, CBS Baltimore reported on Wednesday:
While most Maryland employers provide paid sick leave, analysts estimated about 700,000 people didn’t have the benefit which this law will now change. …
It applies to businesses with at least 15 employees, providing one hour of paid sick leave for every 30 hours worked, and businesses with fewer than 15 get unpaid job protective leave, which also applies to part-time workers. … This law requires businesses to provide five days of sick leave for full-time employees. Backers of the policy see it as an overall benefit for both companies and their staff.
Like sick-leave laws passed recently in other jurisdictions like New York City, Maryland’s law also allows employees to use their sick leave entitlement to address matters of domestic violence, such as going to court to obtain protective orders against abusers or dealing with the aftermath of sexual assault.
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Although Republican efforts to repeal and replace the Affordable Care Act petered out last year without producing a bill, one of the key provisions of the law—the individual mandate—was effectively gutted in the Tax Cuts and Jobs Act passed by both houses of Congress in December. The tax reform package zeroed out the tax penalty imposed on Americans who fail to maintain continuous health insurance coverage throughout the year, rendering the requirement moot.
The effective repeal of the individual mandate undermines the ACA’s core principle of holding down health insurance costs by expanding the risk pool, raising fears of an upward spiral in premiums as healthy individuals exit the individual insurance market. In the wake of the mandate’s rollback, however, several states are considering imposing their own requirements that residents obtain health insurance, Lisa Nagele-Piazza reports at SHRM:
Massachusetts has already had an individual mandate in effect since 2007. “Massachusetts largely served as the model for the ACA,” explained Jeffrey Herman, an attorney with Greensfelder, Hemker & Gale in St. Louis.
More states may follow suit. Maryland lawmakers recently introduced a bill that would impose penalties on the uninsured in the state. And an individual mandate is also being informally advocated for or considered by state legislators or representatives of insurance exchanges in a number of other states, including California, Connecticut, Minnesota, Rhode Island and Vermont, Herman said.
Adam Solander, an attorney with Epstein Becker & Green in Washington, DC, tells Nagele-Piazza that he expects many states, particularly “blue states” with Democratic legislatures, to explore individual coverage mandates in the coming year.
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Airlines For America, a coalition of airlines including industry heavyweights Alaska, JetBlue, United and Southwest, filed a lawsuit in the US District Court in Tacoma, Washington on Tuesday, arguing that the mobile nature of the aviation workforce makes it impossible for them to comply with the paid sick leave laws recently enacted in Washington state and other states and cities, the Associated Press reports:
The complaint put it this way: “A flight crew departing from SeaTac International Airport, landing in Portland International Airport, and continuing to San Diego International Airport is subject to three different paid sick leave laws in a single duty period, each with its own accrual, compensation, reporting, and leave requirements.” The lawsuit seeks a ruling that federal regulation of air travel precludes Washington state’s sick leave law from applying to the airlines’ pilots or flight crews. …
The airlines say many of their employees already have generous sick leave and other benefits, and they’re covered by collective bargaining agreements. They also say that by restricting when employers can demand medical documentation for sick leave, Washington’s law will make it harder for them to crack down on fraud and abuse of sick leave policy. That, they insist, will lead to more employees calling in sick – and more flights being canceled or delayed due to a lack of adequate crew.
The airlines’ suit reflects the concern among multi-state employers that the expanding patchwork of local and state employment laws and regulations will make it harder and more expensive for them to do business across state lines or expose them to an excessive risk of litigation. This has prompted some conservative state governments to pass preemption laws barring localities from enacting their own labor regulations, while at the federal level, some lawmakers have sought to enact a national paid time off policy that would exempt employers from complying with local regulations if they met a less robust federal standard.
Medical or recreational marijuana use is being decriminalized or legalized in a growing number of US states. In 2016, voters in California, Maine, Massachusetts, and Nevada passed referenda legalizing the recreational use of the drug, while Arkansas, Florida, Montana, and North Dakota either introduced or expanded policies legalizing it for medical purposes.
Last week, Vermont became the first state to legalize the possession and consumption of recreational marijuana through the legislative process, though the commercial sale of the drug remains prohibited (residents are allowed to grow up to six plants for personal use). At Lexology, Vorys Sater Seymour and Pease attorney Michael C. Griffaton notes that Vermont’s law, which comes into effect July 1, does not require employers to permit the use of marijuana in the workplace or on their premises and “does not create a cause of action against an employer that discharges an employee for violating a policy that restricts or prohibits the use of marijuana.”
New Jersey may follow in Vermont’s footsteps this year. The Garden State has had a medical marijuana law on the books since 2010, but former governor Chris Christie, a staunch opponent of legalization who came into office shortly after that law was passed, took action to limit its applicability, such as tightening restrictions on what medical conditions qualified for a medical marijuana prescription. Newly-elected governor Phil Murphy, who campaigned on a promise to liberalize the state’s marijuana policies, took the first step in that direction last week with an executive order aimed at easing the regulations imposed by his predecessor, the New York Times reported.
Murphy has indicated that he is in favor of legalizing recreational marijuana as well, which he believes would help combat the ills of mass incarceration and racial bias in the criminal justice system. Earlier this month, New Jersey Senator Nicholas Scutari introduced a bill in the state Senate that would legalize the possession and personal use of limited amounts of marijuana and establish a regulatory body to control its legal sale and taxation in the state. The bill also addresses employers’ concerns about marijuana use in the workplace, attorneys from the law firm Porzio Bromberg & Newman explain at Lexology:
Bank of America has joined a growing number of major US companies that have decided to stop asking candidates for their salary histories or using that information to set compensation for new hires, in an effort to close gender and racial pay gaps, Bloomberg’s Jordyn Holman reports:
The policy, which takes effect in March, “restricts how we solicit compensation information from candidates during the hiring process,” Sheri Bronstein, the bank’s global head of human resources, said in a memo to employees this week. “We will implement it across the company to help ensure we consider new hires for individual qualifications, roles and performance, rather than how they may have been compensated in the past.”
Bank of America was already required to meet similar rules in states including Massachusetts and California. The bank’s most recent review found that female employees in the U.S. and U.K. are paid on average 99 percent of what male employees earn, after adjusting for factors including role in the organization, experience, work location and performance, according to the memo. Minority employees are also paid on average 99 percent what their non-minority colleagues make, the review found.
These results are identical to those found by Citigroup, one of Bank of America’s chief competitors, in a recent pay survey of its workforce in the US, UK, and Germany. Arjuna Capital, the activist arm of investment firm Baldwin Brothers Inc, had been pressuring both banks to address gender pay gaps by introducing shareholder resolutions that would require them to do so. Arjuna withdrew its proposals after the banks released their pay survey findings.
In 2016, Massachusetts state lawmakers failed to reach a compromise over a bill that would strictly limit companies’ ability to enforce non-compete clauses in employees’ contracts, slowing the momentum of a trend among states to restrict the use of these agreements in roles where they were unnecessary or would overly limit employees’ future career prospects. The bill was widely expected to be revisited in the state’s next legislative session; sure enough, it has, and members of the Massachusetts House and Senate are now close to reaching a deal on a bill that satisfies both houses’ concerns, Jon Chesto reports at the Boston Globe:
There are still some issues to be worked out between House and Senate negotiators. The legislation will most likely include noncontroversial elements such as bans on using noncompetes for lower-paid hourly workers, such as camp counselors and sub-shop employees. But the two sides have yet to agree on how long noncompete contracts can remain in force. In 2016, the House leadership supported up to 12 months, while the Senate backed a three-month limit. Another potential sticking point: the wording for how departing employees should receive payments, known as “garden leave,” while their noncompetes are in effect.
Advocates for curbing the use of non-competes in Massachusetts say it harms the state’s ability to leverage its highly educated workforce and become a full-fledged tech startup hub like California, which is one of the few states where the use of such clauses is almost always prohibited and where courts generally have refused to recognize them. Most other states have laws that limit the use of non-competes to the protection of trade secrets and other confidential information, but impose a varied range of standards for determining whether an agreement is enforceable.
Lawmakers in three other states—New Hampshire, Pennsylvania, and Vermont—are also considering new restrictions this year, Jackson Lewis attorneys Daniel P. Schwarz, Martha Van Oot, Erik J. Winton and Colin A. Thakkar write at SHRM: