May 2012, State Employment Laws and Regulations, …
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State Employment Law Library Update
July 2012
Arizona Employment Verification/Immigration
Arizona’s S.B. 1070, enacted in 2010 to stem a growing tide of undocumented immigration into the state, is largely preempted by federal law, a divided U.S. Supreme Court held (Arizona v United States, June 25, 2012, Kennedy, A). Among the state law’s provisions struck down by the High Court was Sec. 5(C), which makes it a criminal misdemeanor for “an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor” in the state. Summaries, State Employment Law Library ¶3-9000.
California Fair Employment Practices
The state has amended its fair employment practices law with respect to dispute resolution (Ch. 46 (S. 1038), L. 2012). Full Text, State Employment Law Library ¶5-20,025.46—¶5-20,028.10. Summaries, State Employment Law Library ¶5-2500.
California Garment Manufacturers
Arbitration procedures are amended to provide that upon the written request of a manufacturer or contractor, the California State Mediation and Conciliation Service shall notify the other party to a dispute of the request for arbitration. The amendment changes the agency designation from the Department of Industrial Relations to the California Public Employment Relations Board through the California State Mediation and Conciliation Service (Ch. 46 (S. 1038), L. 2011, effective June 27, 2012). Full Text, State Employment Law Library ¶5-43,223.
California Minimum Wage
Effective July 1, 2012, and through June 30, 2013, the living wage rates for the City of Los Angeles are $10.70 per hour if health benefits of $1.25 per hour are provided, or a full cash wage of $11.95 per hour. Summaries, State Employment Law Library ¶5-1000.
Also, agency changes are made under the state’s budget bill. State budget bill S. 1038 abolishes the Division of Labor Statistics and Research and transfers duties of the Division to the Division of Occupational Health and Safety and the Division of Labor Standards Enforcement, as well as making other agency changes. The California Labor Code provides that, upon request of the Industrial Welfare Commission, the Department of Industrial Relations (previously, Division of Labor Statistics and Research) shall cause statistics and other data and information to be gathered, and investigations made, as the Commission may require (Ch. 46 (S. 1038), L. 2011, effective June 27, 2012). Full Text, State Employment Law Library, ¶5-41,056.
California Overtime
California law requires the payment of overtime for hours worked in excess of eight hours in one day and in excess of 40 hours in a workweek, at the rate of one and one-half times the employee’s regular rate. For hours worked in excess of 12 in one day, employees must be compensated at no less than twice the employee’s regular rate of pay. In addition, employees must be compensated at no less than twice the employee’s regular rate for any work in excess of eight hours on any seventh day of the workweek. The law also provides for various exemptions, if certain conditions are met.
One exemption allows employees to adopt regularly scheduled alternative workweeks, of no more than 10 hours per day within a 40-hour workweek, which must be adopted through a secret ballot election by at least two-thirds of affected employees in a readily identifiable work unit. The results of such election must be reported by an employer to the Division of Labor Standards Enforcement (previously to the Division of Labor Statistics and Research) within 30 days after the results are final (Ch. 46 (S. 1038, L. 2011, effective June 27, 2012). Full Text, State Employment Law Library ¶5-44,003. Summaries, State Employment Law Library ¶5-1100.
Another exemption exists for those working in the computer software field, as well as for licensed physicians and surgeons, who meet certain criteria, including being paid a minimum rate of pay, with such minimum rate adjusted annually based on cost of living. The Department of Industrial Relations (previously, the Division of Labor Statistics and Research) is charged with adjusting the minimum rates of pay and salary ranges in these fields (Ch. 46 (S. 1038, L. 2011, effective June 27, 2012). Full Text, State Employment Law Library ¶5-44,007a and ¶5-44,007b. Summaries, State Employment Law Library ¶5-1100.
Note: State budget bill S. 1038 abolishes the Division of Labor Statistics and Research and transfers duties of the Division to the Division of Occupational Health and Safety and the Division of Labor Standards Enforcement, as well as making other agency changes.
California Posters
The Los Angeles City Contractor Living Wage Poster has been updated. Summaries, State Employment Law Library ¶5-9900.
California Prevailing Wage
The Department of Industrial Relations is authorized to monitor and enforce compliance with applicable prevailing wage requirements for any public works project paid for out of public funds. Prevailing wage requirements are amended to reflect agency changes and to make other conforming changes implemented under the state’s budget bill.
Where copies of awards of public contracts were previously required to be sent to the Division of Apprenticeship Standards, such copies must now be sent to the Department of Industrial Relations.
Prior law also provided that a contractor or subcontractor who was determined to have knowingly committed a serious violation of specified provisions would be denied the right to bid on or be awarded or perform work on any public works for a period of time. The law also provided that an affected contractor, subcontractor, or responsible officer could obtain a review of the determination imposing the debarment or civil penalty within 30 days. These provisions have been amended to instead allow for the request of the review within 60 days and to make other related changes (Ch. 46 (S. 1038), L. 2011, effective June 27, 2012). Full Text, State Employment Law Library, ¶5-50,032, ¶5-50,041, ¶5-50,044 and ¶5-50,046.
Colorado Background Checks
The state has amended its law relating to criminal history record checks of emergency medical service providers (Ch. 271 (H. 1059), L. 2012). Full text, State Employment Law Library ¶6-23,600.47. Summaries, State Employment Law Library ¶6-9000.
Colorado Unemployment Insurance
Effective July 1, 2012, the maximum weekly benefit amount increased to $466, and the alternate maximum weekly benefit amount increased to $513. The minimum amount remains $25. Summaries, State Employment Law Library ¶6-1700.
Connecticut Background Checks
The state has amended its law relating to criminal history records checks and fingerprinting of certain public school employees (P.A. 12-120 (S. 299), L. 2012). Full text, State Employment Law Library ¶7-23,600.01. Summaries, State Employment Law Library ¶7-9000.
Connecticut Time Off to Vote
Law providing penalties for certain election-day related offenses is amended to make such violations a felony offense. A person who, prior to an election, municipal meeting, school district election or school district meeting, attempts to influence the votes of employees by using threats of withholding employment, promises employment, or dismisses a person from employment on account of a vote given would be guilty of a class D felony. The use of force, bribery, corruption or fraudulent or deceitful means to influence a voter to stay away from an election or to influence how a person votes would also be a felony (Public Act 12-193 (H. 5022), L. 2012, effective July 1, 2012). Full Text, State Employment Law Library ¶7-60,002, ¶7-60,003, ¶7-60,004 and ¶7-60,005. Summaries, State Employment Law Library, ¶7-7300.
Delaware COBRA
Small employers (1—19 employees) must offer continued coverage under a group health plan to eligible employees and dependents upon the occurrence of a qualifying event such as termination of employment. Delaware joins nearly 40 other states that offer some form of “mini-COBRA” law intended to fill the gap left by the federal COBRA law, which covers employers with 20 or more employees.
According to Delaware Insurance Commissioner Karen Weldin Stewart, “This law not only protects Delawareans from fear of losing health insurance coverage upon losing employment but it also alleviates stress for many during an uncertain time.”
Note the legislation is temporary: it is set to expire January 1, 2014, and, if the Supreme Court finds the Affordable Care Act to be unconstitutional, then by its terms the Delaware law will have “no force or effect” (H. 170, L. 2012, enacted May 22, 2012, and effective June 21, 2012; news.). Summaries, State Employment Law Library ¶8-4200.
Delaware New Hire Reporting
Every employer required to deduct and withhold income tax must, within 20 days after the date it hires an employee, notify the State Directory of New Hires of the hiring. Employers must report for each new hire the name, address and social security number of the newly hired employee, the date services for remuneration were first performed by the employee, and the name and the name and address of, and federal tax identifying number (FEIN) assigned to, the employer. Employers that report electronically or magnetically must submit such reports by two monthly submissions, 12-16 days apart (Ch. 311 (S. 274), L. 2011, effective July 5, 2012). Summaries, State Employment Law Library, ¶8-1600.
Delaware Whistleblower Protection
Although a constructive discharge can form the basis of a claim under the Delaware Whistleblower Protection Act, an employee failed to provide sufficient evidence that intolerable conditions arose from her complaint about the issuance of a firearm to an uncertified individual, ruled the Delaware Supreme Court in affirming summary judgment for the employer (Smith v Delaware State University, July 5, 2012, Ridgely, H). Her defamation claim based on a negative reference failed on procedural grounds. Summaries, State Employment Law Library ¶8-3600.
District of Columbia Minimum Wage
The Living Wage Act of 2006 has been amended to replace references to “mentally retarded persons” with the phrase “persons with intellectual disabilities” (Act 361 (B. 189), L. 2011, enacted May 15, 2012). Summaries, State Employment Law Library ¶9-1000.
District of Columbia Posters
The state’s breastfeeding rights poster has been added. Summaries, State Employment Law Library ¶9-9900.
Florida New Hire Reporting
All employers must furnish a report to the State Directory of New Hires a report that includes the name, address, date of hire and social security number of every new and rehired employee, and the employer's name, address, and federal tax identifying number (FEIN).
Employers subject to the reporting requirements of Florida's unemployment compensation law with 250 or more employees must provide a report for each newly hired or rehired employee to the State Directory of New Hires. The report must list the employee's legal name, address, and reemployment assistance identification number. The report must also provide the name and social security number of each new employee or rehired employee at the end of the first pay period following employment or reemployment (Ch. 30 (H. 7027), L. 2012, effective July 1, 2012). Summaries, State Employment Law Library, ¶10-1600.
Hawaii Background Checks
The state has enacted a law allowing programs statutorily authorized to conduct criminal history record checks on employment and licensing applicants to participate in a statewide rap back program. The law provides that such program will inform an employer when an individual, who has undergone a fingerprint-based background check and whose fingerprints are retained by a criminal history repository after the check, is subsequently arrested (Act 2012-210 (H. 2454), L. 2012). Summaries, State Employment Law Library ¶12-9000.
Illinois Affirmative Action
The Department of Human Rights’ procedural rules have been amended to (1) clarify the request for review period when a notice of default is issued; (2) make technical changes to clarify affirmative action obligations of state agencies; and (3) updated outdated references in the department’s affirmative action obligations for state agencies. Full text, State Employment Law Library ¶14-20,127.570—¶14-20,127.999.
Illinois New Hire Reporting
Employers must now report the employee’s monthly projected wages, along with other information required for newly hired employees, namely, the employee's name, address and social security number, and the date services for remuneration were first performed by the employee (P.A. 97-689 (S. 2840), L. 2011, effective June 14, 2012). Summaries, State Employment Law Library ¶14-1600.
Effective January 1, 2013, “newly hired employee” is defined to mean an individual who (i) is considered an employee for federal income tax purposes under Chapter 24 of the Internal Revenue Code of 1986 and (ii) either has not previously been employed by the employer or was previously employed by the employer but has been separated from that prior employment for at least 60 consecutive days (P.A. 97-791 (H. 5632), L. 2011, enacted July 13, 2012). Summaries, State Employment Law Library ¶14-1600.
Iowa Military Leave
References to “state military service” have been changed to “national guard duty”, effective July 1, 2012 (S. 2097, L. 2012). Full text, State Employment Law Library ¶16-21,150.01. Summaries, State Employment Law Library ¶16-7200.
Iowa Unemployment Insurance
For the year beginning July 1, 2012, the maximum weekly benefit amounts are $396 for an individual with no dependents, $411 for an individual with one dependent, $426 for an individual with two dependents, $449 for an individual with three dependents, and $486 for an individual with four or more dependents. Summaries, State Employment Law Library ¶16-1700.
Kansas Unemployment Insurance
The maximum weekly benefit amount in Kansas effective July 1, 2012, is $456, and the minimum weekly benefit amount is $114. Summaries, State Employment Law Library ¶17-1700.
Kentucky Drug Testing
Coal miners who fail a drug-alcohol test will not longer be allowed to work in mines after a third offense as a result of legislation signed by Kentucky Governor Steve Beshear on June 19.
House Bill 385 amends the current process for testing miners by the Kentucky Office of Mine Safety and Licensing (OMSL). The legislation updates the 11-panel test, giving the Mine Safety Review Commission (MSRC) authority to add additional compounds to the test, and creates a three-strike policy for miners who continue to fail drug and alcohol tests.
H.B. 385 provides a treatment option for those miners reported for the first time, allowing their certificate to be reinstated following an evaluation for substance abuse, the completion of a treatment program, and a clean drug test in lieu of an appeal or revocation. The amendment builds on law enacted in 2006 that requires coal mine workers to be certified drug free.
The legislation states that if miners do not participate in a substance abuse treatment program and fail to appeal his or her license suspension, they face a three-year revocation of all certifications and eligibility for certifications on the first offense; a five-year revocation of all certifications and eligibility for certifications for the second offense; and a permanent revocation for the third offense (Ch. 89 (H. 385), L. 2012, effective July 12, 2012). Full Text, State Employment Law Library, ¶18-53,002, ¶18-53,009, ¶18-53,009a, ¶18-53,013, ¶18-53,014, ¶18-53,015 and ¶18-53,017a. Summaries, State Employment Law Library, ¶18-8600.
Louisiana Access to Personnel Records
The Louisiana Workforce Commission may make available, upon an employee’s written request, the employee’s wage and employer information, to be provided to the employee or his or her representative, for lending purposes, tenant screening and insurance underwriting only. The Commission may also allow, at the employee’s request, for the electronic transmission of such records, directly or through a third-party vendor, on an individual inquiry basis; Costs incurred to provide access to employee wage and employment records to a third party must be paid by the third party. Data is to be exchanged only under strictly controlled conditions (Act 822 (H. 1121), L. 2012, enacted June 14, 2012, and effective August 1, 2012). Full Text, State Employment Law Library, ¶19-63,011a. Summaries, State Employment Law Library, ¶19-8500.
Louisiana Child Labor
Effective August 1, 2012, employment certificates may be issued by either (1) the parish or city public school superintendent or by such official's designated representative or (2) by the principal of a public or private school or the principal’s designated representative. If the student is a home study program participant, the employment certificate may be issued by any person authorized by the Louisiana Workforce Commission. The superintendent of the parish, city, or other public school governing authority or his designee, or the private school principal or his designee, shall completely fill out and electronically submit the Employment Certificate Interactive Form located on the Louisiana Workforce Commission's website. The online employment certificate, which includes the information that was entered onto the department's employment certificate database, is to be printed, signed by the minor and the issuing authority and presented to the minor for delivery to the employer (Act 837 (S. 612), L. 2012). Full Text, State Employment Law Library ¶19-45,001 and ¶19-45,033. Summaries, State Employment Law Library ¶19-1500.
Louisiana COBRA
Effective January 1, 2013, the death or divorce of an employee or member will join termination of employment as qualifying events for Louisiana’s mini-COBRA coverage. Previously, continuation coverage for surviving spouses was available only for those aged 50 or older. In addition, employees must generally elect coverage no later than the end of the month following the month in which the qualifying event occurred. (Surviving spouses aged 50 or older may take 90 days after the date of death to elect coverage.) Finally, a bar against continuation of dental or vision care benefits has been repealed (Act 830 (H. 1196), L. 2012, enacted June 14, 2012, and effective January 1, 2013). Summaries, State Employment Law Library ¶19-4200.
Louisiana Employee Misclassification
Louisiana’s unemployment compensation law prohibits misclassification of employees as independent contractors. If it is determined that an employee is improperly misclassified, but the failure was not knowing or willful, the employee will be issued a written warning and the employer will be required to pay any contributions, interest and penalties due. However, no administrative penalties will be due. After June 30, 2013, and subsequent to the issues of a written warning, employers that fail to properly classify an individual as an employee to avoid compliance with the law will be subject to administrative penalties, in addition to any contributions, interest and penalties otherwise due, in an amount of up to $250 per individual improperly classified. After that, violators will be subject to a penalty of up to $500 per individual. Employers found to violate the law on two or more separate occasions may also be subject to an additional fine of $100 to $1,000 and/or imprisonment of 30 to 90 days. Each employee misclassified is considered a separate offense. Those found to have willfully violated the law and pay contributions will also be prohibited from contracting with a state agency or political subdivision of the state for a period of three years from the date the determination becomes final. Employers are also required to post notice in a prominent and accessible place at each business premise a poster that describes the responsibilities of independent contractors to pay taxes as required by federal and state law, the rights of employees to workers’ compensation and unemployment benefits, protections against retaliation, and penalties if the employer fails to properly classify an individual as an employee. The notice must also contain contact information for individuals to file complaints or obtain information regarding employee classification.
In addition, the term “employment” is clarified to specify that employment does not include those servicers performed by an individual who meets the definition of an “owner-operator.” (Act 786 (S. 472), L. 2012, enacted June 13, 2012, and effective August 1, 2012). Full Text, State Employment Law Library ¶19-48,001 and ¶19-48,002.
Louisiana Family, Medical and Parental Leaves
The state has amended its law relating to extended sick leave for teachers, school bus operators, and other school employees (Act 788 (S. 494), L. 2012). Full text, State Employment Law Library ¶19-22,450.01 and ¶19-22,450.03. Summaries, State Employment Law Library ¶19-7000.
Louisiana Minimum Wage
Effective August 1, 2012, local government entities (parishes and municipalities) are prohibited from establishing a mandatory, minimum number of vacation or sick leave days, whether paid or unpaid, that a private employer would be required to grant employees (Act 667 (S. 521), L. 2012, enacted June 7, 2012). Full Text, State Employment Law Library, ¶19-41,001. Summaries, State Employment Law Library, ¶19-1000.
Louisiana Smoking in the Workplace
Law prohibiting smoking in hospitals is amended to eliminate the requirement for accommodation of smoking by inpatients in psychiatric facilities of the Department of Health and Hospitals; to establish procedures for treatment of smokers with mental illness in such facilities; and other related matters (Act 373 (H. 80), L. 2012, effective May 31, 2012). Summaries, State Employment Law Library ¶19-2700.
Missouri Disaster and Emergency Services Leaves
Employees of the state who are members of the United States Coast Guard Auxiliary may be granted a leave of absence from their respective duties, without loss of time, pay, regular leave, impairment or efficiency rating, or of any other rights the employee may be entitled to, for periods during which such person is engaged in the performance of the United States Coast Guard or United States Coast Guard Auxiliary duties, including travel related to such duties, when authorized by the appropriate United States Coast Guard order issuing authority or such person's designated representative. Leave for such service shall be for not more than 15 working days in any state fiscal year, or without regard to length of time when responding to a state or nationally declared emergency or disaster in the state of Missouri or upon any navigable waterway within or adjacent to the state of Missouri. Employees are protected from discharge or discrimination based on such leaves of absence. Similar leave and protections apply to employees of private employers with 50 or more employees, for periods during which the employee is engaged in the performance of United States Coast Guard or United States Coast Guard Auxiliary duties, including travel related to such duties, when authorized by the Director of Auxiliary (DIRAUX) or other appropriate United States Coast Guard authority, except that such private employers are not obligated to pay employees during such leaves of absence and these employers have a right to request that the employee be exempted from responding (H. 1315, L. 2012, enacted July 6, 2012). Full Text, State Employment Law Library ¶26-58,202a. Summaries, State Employment Law Library ¶26-7200.
Missouri New Hire Reporting
Employers must report, at a minimum, the name, address and Social Security number of the employee, the date services for remuneration were first performed by the employee, and the name and address of, and identifying number assigned to the employer under section 6109 of the Internal Revenue Code of 1986, as amended (H. 1131, L. 2012). Full Text, State Employment Law Library, ¶26-47,021. Summaries, State Employment Law Library ¶26-1600.
Montana Fair Employment Practices
Addressing a certified question, the Montana Supreme Court ruled in a 4-3 decision that obesity that is not the symptom of a physiological disorder or condition may constitute a “physical or mental impairment” under Montana law if the individual’s weight is outside “normal range” and affects “one or more body systems” as defined by federal regulation (BNSF Railway Co v Feit, July 6, 2012, Baker, B). Here, the majority drew on the ADAAA and the various EEOC interpretations to support its conclusion. However, two dissents dissected the court’s opinion — each writing for different reasons — and argued that the ADAAA did not provide a basis for the decision. Summaries, State Employment Law Library ¶27-2500.
Montana Unemployment Insurance
The maximum weekly benefit amount in Montana effective July 1, 2012, is $446. The minimum amount is $127. Summaries, State Employment Law Library ¶27-1700.
Nevada Unemployment Insurance
Effective July 1, 2012, Nevada’s maximum weekly benefit amount is $404. Summaries, State Employment Law Library ¶29-1700.
New Hampshire Employment Verification/Immigration
New Hampshire Governor John Lynch has signed a law to address the misuse of social security numbers. House Bill 158, which will take effect August 17, 2012, creates a cause of action against persons who misuse social security numbers with a fraudulent intent, individuals who knowingly supply or aid in obtaining false social security documentation, and employers who know the documentation is false.
Any employer who receives verification of an employee's eligibility to work from the Social Security Administration, E-Verify, or any other reputable organization providing a verification service shall be deemed to have exercised reasonable care and shall have an affirmative defense to the cause of action.
Damages awarded by the court shall be treble damages or $10,000, whichever is greater, plus reasonable attorneys’ fees and any costs incurred to correct the records of the aggrieved party (Ch. 244 (H. 158), L. 2012). Full text, State Employment Law Library ¶30-24,050.011 and ¶30-63,021a. Summaries, State Employment Law Library ¶30-2500.
New Hampshire Garnishment
Effective August 10, 2012, the Department of Employment Security may garnish the wages of individuals with delinquent unemployment compensation benefits. Upon the failure of a debtor to pay an overpayment due to the state within 90 days of the date the determination creating the fraud overpayment becomes final, the Department will serve upon the employer duplicate notices of garnishment upon wages the employer owes or will owe the individual, as well as serving notice upon the debtor.
The employer must (a) provide one of the duplicate copies of the notice of garnishment to the individual debtor upon receipt; (b) apply the garnishment to any current or subsequent earnings paid 21 or more days after the date of issuance of the notice of garnishment; (c) not garnish for any week more than the amount allowed; (d) suspend garnishment of earnings paid not later than 8 days following receipt of notice from the department of the requirement to do so; (e) give priority to any amounts that the employer is obligated to withhold pursuant to RSA 458-B over amounts subject to garnishment under this section; (f) not allow the amount garnished pursuant to this section, including any fee added and retained under paragraph VII, when added to the amount withheld pursuant to RSA 458-B to exceed 25 percent of the individual debtor’s weekly disposable earnings, or the amount by which the individual debtor’s weekly disposable earnings exceed 50 times the minimum hourly wage as established by the Fair Labor Standards Act, whichever is less; (g) implement garnishment no later than the first payment of earnings that occurs 21 or more days after the notice was mailed; (h) treat the garnishment as binding upon the employer until payment in full is made of the total amount subject to garnishment; (i) send the garnished amount to the commissioner at the same time the individual debtor is paid; (j) notify the commissioner within 20 days of the individual debtor’s termination of employment, and shall provide the individual debtor’s last known address and the name and address of the present employer, if known; (k) be liable for the accumulated amount it should have garnished if it fails to garnish in accordance with the provisions of the notice.
Garnishment may also be by court order, for an amount determined in the order, issued by any circuit court district division (Ch. 176 (H. 1579), L. 2012, enacted June 11, 2012). Full Text, State Employment Law Library ¶30-46,040. Summaries, State Employment Law Library ¶30-5600.
New Hampshire Labor Relations
The state’s public employee labor relations law is amended relating to communications between employers and employees during collective bargaining negotiations to provide that where there is an impasse or where an agreement has not been reached on a contract, prior to budget submission date, if not otherwise covered by ground rules, the chief negotiator for the bargaining unit may request to make a presentation directly to the board of the public employer and, if approved, make a presentation directly to the bargaining unit. The chief negotiator for the board may request to make a presentation directly to the bargaining unit and, if passed, may request to make a presentation to the board of the public employer (H. 582, L. 2012, effective January 1, 2013). Full Text, State Employment Law Library ¶30-63,037.
New Hampshire Minimum Wage
The definition of “employee” is amended, effective August 6, 2012, to clarify the criteria for a worker to be exempt from the status of employee. Under the state minimum wage law, a person would be exempt if they met all of the following criteria: (a) the person possesses or has applied for a federal employer identification number or social security number, or in the alternative, has agreed in writing to carry out the responsibilities imposed on employers under this chapter; (b) the person has control and discretion over the means and manner of performance of the work, in that the result of the work, rather than the means or manner by which the work is performed, is the primary element bargained for by the employer; (c) The person has control over the time when the work is performed, and the time of performance is not dictated by the employer (this would not, however, prohibit the employer from reaching an agreement with the person as to completion schedule, range of work hours, and maximum number of work hours to be provided by the person, and in the case of entertainment, the time such entertainment is to be presented); (d) the person hires and pays the person's assistants, if any, and to the extent such assistants are employees, supervises the details of the assistants' work; (e) the person holds himself or herself out to be in business for himself or herself or is registered with the state as a business and the person has continuing or recurring business liabilities or obligations; (f) the person is responsible for satisfactory completion of work and may be held contractually responsible for failure to complete the work; and (g) the person is not required to work exclusively for the employer. Also exempt under the law are real estate agents, direct sellers, real estate appraisers, certain inmates of county or state correctional facility for which no significant remuneration is provided, certain volunteers, or persons performing community service work under a court order, or anyone providing residential placement services for a person with a disability (Ch. 139 (H. 420), L. 2012, enacted June 7, 2012). Full Text, State Employment Law Library ¶30-41,001. Summaries, State Employment Law Library ¶30-1000.
New Hampshire New Hire Reporting
Employers must report the new hiring, rehiring, or contracting of individuals for other than casual labor (if reimbursement for services is expected to exceed $2500) to the New Hampshire Department of Health and Human Services within 20 days of such action (if reporting electronically, then by two monthly transmissions 12-16 days apart). Effective August 10, 2012, the report must contain the date of the individual’s first day of work, in addition to his or her name, address and social security number, as well as the employer’s name, address, and federal and state identification numbers (FEIN and NHES). (Ch. 176 (H. 1579), L. 2012, enacted June 11, 2012). Full Text, State Employment Law Library ¶30-47,021. Summaries, State Employment Law Library ¶30-1600.
New Hampshire Noncompete Agreements
Effective July 14, 2012, prior to or concurrent with making an offer of change in job classification or an offer of employment, every employer shall provide a copy of any noncompete or nonpiracy agreement that is part of the employment agreement to the employee or potential employee. Any contract that is not in compliance with this requirement shall be void and unenforceable (Ch. 70 (H. 1270), L. 2012). Full Text, State Employment Law Library ¶30-63,016a. Summaries, State Employment Law Library ¶30-2500.
New Hampshire Wage Payment
The definition of “employee” is amended effective August 6, 2012, to clarify the criteria for a worker to be exempt from the status of employee. A person would be exempt under the state’s wage payment law if they met all of the following criteria: (a) the person possesses or has applied for a federal employer identification number or social security number, or in the alternative, has agreed in writing to carry out the responsibilities imposed on employers under this chapter; (b) the person has control and discretion over the means and manner of performance of the work, in that the result of the work, rather than the means or manner by which the work is performed, is the primary element bargained for by the employer; (c) The person has control over the time when the work is performed, and the time of performance is not dictated by the employer (this would not, however, prohibit the employer from reaching an agreement with the person as to completion schedule, range of work hours, and maximum number of work hours to be provided by the person, and in the case of entertainment, the time such entertainment is to be presented); (d) the person hires and pays the person's assistants, if any, and to the extent such assistants are employees, supervises the details of the assistants' work; (e) the person holds himself or herself out to be in business for himself or herself or is registered with the state as a business and the person has continuing or recurring business liabilities or obligations; (f) the person is responsible for satisfactory completion of work and may be held contractually responsible for failure to complete the work; and (g) the person is not required to work exclusively for the employer (Ch. 139 (H. 420), L. 2012, enacted June 7, 2012). Full Text, State Employment Law Library, ¶30-46,001 and ¶30-46,028. Summaries, State Employment Law Library ¶30-1200.
New Hampshire Whistleblowers’ Protection Act
The definition of “employee” is amended effective August 6, 2012, to clarify the criteria for a worker to be exempt from the status of employee. A person would be exempt under the state’s wage payment law if they met all of the following criteria: (a) the person possesses or has applied for a federal employer identification number or social security number, or in the alternative, has agreed in writing to carry out the responsibilities imposed on employers under this chapter; (b) the person has control and discretion over the means and manner of performance of the work, in that the result of the work, rather than the means or manner by which the work is performed, is the primary element bargained for by the employer; (c) The person has control over the time when the work is performed, and the time of performance is not dictated by the employer (this would not, however, prohibit the employer from reaching an agreement with the person as to completion schedule, range of work hours, and maximum number of work hours to be provided by the person, and in the case of entertainment, the time such entertainment is to be presented); (d) the person hires and pays the person's assistants, if any, and to the extent such assistants are employees, supervises the details of the assistants' work; (e) the person holds himself or herself out to be in business for himself or herself or is registered with the state as a business and the person has continuing or recurring business liabilities or obligations; (f) the person is responsible for satisfactory completion of work and may be held contractually responsible for failure to complete the work; and (g) the person is not required to work exclusively for the employer (Ch. 139 (H. 420), L. 2012, enacted June 7, 2012). Full Text, State Employment Law Library, ¶30-62,001. Summaries, State Employment Law Library ¶30-3600.
New York Minimum Wage
On June 28, 2012, the New York City Council voted to override Mayor Michael Bloomberg’s veto of the Fair Wages for New Yorkers Act. The council voted 46-5 to override the of legislation that requires any private development project that directly takes at least $1 million in taxpayer subsidies to pay their employees either $10/hour with supplemental health benefits or $11.50/hour without such benefits.
The council estimates that the law will affect at least 900 workers every year. It is intended to be implemented prospectively and does not apply retroactively.
Despite the veto override, the legislation’s fate is not certain. Bloomberg has threatened in the past to file a lawsuit to block the law from taking effect; the mayor believes that the ordinance interferes with the free market and will thwart economic development projects that could create jobs. The city council has vowed to fight any lawsuit. Summaries, State Employment Law Library ¶33-1000.
New York Posters
The following posters have been added: Domestic Workers’ Rights Poster and New York City Public Works Project Posters (English and Spanish versions). Summaries, State Employment Law Library ¶33-9900.
North Dakota Unemployment Insurance
Effective July 1, 2012, the maximum weekly benefit amount in North Dakota is $516. The minimum weekly benefit amount remains at $43. Summaries, State Employment Law Library ¶35-1700.
Ohio Background Checks
The state has enacted a law that extensively reforms the collateral sanctions that restrict employment for individuals with criminal convictions. The law provides for a process in which certain individuals with a criminal conviction can petition the Division of Parole and Community Services for a certificate of qualification for employment. Provision is also made to protect employers from negligent hiring lawsuits (S. 337, L. 2012). Full text, State Employment Law Library ¶36-23,600.11; ¶36-23,601.11; ¶36-23,601.20; and ¶36-23,601.21. Summaries, State Employment Law Library ¶36-9000.
Ohio Prevailing Wage
Conforming changes are made to reflect an agency change, whereby the Division of Labor in the Department of Compliance is renamed the Division of Industrial Compliance. Penalties paid for violations are to be deposited into the industrial compliance operating fund (H. 487, L. 2012). Full Text, State Employment Law Library, ¶36-50,013 and ¶36-50,013a.
Oklahoma Background Checks
The state’s law has been amended with respect to background checks for certain health care workers (H. 2582, L. 2012, effective November 1, 2012). Full text, State Employment Law Library ¶37-23,600.30—¶37-23,600.32. Summaries, State Employment Law Library ¶37-9000.
Oregon Unemployment Insurance
The term "employment" does not include service performed in the operation of a passenger motor vehicle that is operated as a taxicab or for nonemergency medical transportation, by a person who has an ownership or leasehold interest in the passenger motor vehicle, for an entity that is operated by a board of owner-operators elected by the members of the entity. This provision does not apply to service performed for a nonprofit employing unit, the state, a political subdivision of the state, or an Indian tribe. Summaries, State Employment Law Library ¶38-1700.
Pennsylvania Employment Verification/Immigration
Effective January 1, 2013, public works contractors and subcontractors will be required under the “Public Works Employment Verification Act” to use the federal E-Verify Program to electronically verify employment eligibility of each new employee (Act 127 (S. 637), L. 2012, enacted July 5, 2012). Full Text, State Employment Law Library, ¶39-49,006. Summaries, State Employment Law Library ¶39-2500 and ¶39-9000.
Pennsylvania Overtime
Pennsylvania requires compensation for overtime at the rate of one and one-half times the employee’s regular rate for hours worked over 40 in a workweek, except that students employed in seasonal occupations may be excluded from this requirement. This law is amended to provide that an employer would not be in violation of state overtime requirements if the employer is entitled to utilize and acts consistently with federal law requirements under Section 7(j) of the Fair Labor Standards Act of 1938 (29 U.S.C. Sec. 207(j)) and regulations promulgated under that provision, relating to the employment of workers in hospitals or establishments, caring for the sick, aged or mentally ill, who have an agreement to work a 14-consecutive day workweek and who are compensated for overtime at not less than one and one-half times the regular rate, for hours worked over eight hours in any workday and in excess of 80 hours in any 14-day period (8/80) (Act 109 (H. 1820), L. 2012, effective July 5, 2012). Full Text, State Employment Law Library, ¶39-44,002. Summaries, State Employment Law Library ¶39-1100.
In addition, air carriers subject to Title II of the federal Railway Labor Act (44 Stat. 577, 45 U.S.C. Sec. 181 et seq.) will be exempt from state overtime requirements when (1) the hours are voluntarily worked by the employee pursuant to a shift-trading practice under which the employee has the opportunity to reduce hours worked in any workweek by voluntarily offering a shift for trade or reassignment; or (2) the required hours of work, wages and overtime compensation have been agreed to either in a collective bargaining agreement between the employer and labor organization representing employees for purposes of collective bargaining or pursuant to a voluntary agreement or understanding arrived at between the employer and employee (Act 109 (H. 1820), L. 2012, effective October 3, 2012). Full Text, State Employment Law library, ¶39-44,003. Summaries, State Employment Law Library ¶39-1100.
Rhode Island Background Checks
The law has been amended to specifically include mentors among school employees who must undergo a national and state criminal background check, effective June 26, 2012 (H. 7077, L. 2012). Full text, State Employment Law Library ¶41-23,600.01. Summaries, State Employment Law Library ¶41-9000.
Rhode Island Employee Misclassification
The misclassification of a worker was an independent contractor when the worker should be considered and paid as an employee is considered a violation of Rhode Island’s Payment of Wages Law (Ch. 306 (H. 7509) and Ch. 344 (S. 2422), L. 2012, effective June 20, 2012). Full Text, State Employment Law Library ¶41-48,002.
Rhode Island Fair Employment Practices
A person experiencing homelessness has the right not to face discrimination while seeking or maintaining employment due to his or her lack of permanent mailing address, or his or her mailing address being that of a shelter or social service provider (H. 7173 and S. 2052, L. 2012). Summaries, State Employment Law Library ¶41-2500.
Rhode Island Minimum Wage
Effective January 1, 2013, the minimum wage in Rhode Island will increase from $7.40 per hour to $7.75 per hour. The state minimum wage has remained at $7.40 per hour since 2007 (Ch. 313 (H. 7396) and Ch. 345 (S. 2374), L. 2012, enacted June 20, 2012). Full Text, State Employment Law Library ¶41-41,003. Summaries, State Employment Law Library ¶41-1000.
Law pertaining to employer liability for payment of less than the minimum wage is amended to provide that, instead, any person aggrieved by a violation of the state minimum wage law is entitled to seek relief as provided for under state provisions for payment of wages (Ch. 306 (H. 7509) and Ch. 344 (S. 2422), L. 2012, effective June 20, 2012). Full Text, State Employment Law Library ¶41-41,025. Summaries, State Employment Law Library ¶41-1000.
Rhode Island Wage Payment
The director of the department of labor and training may, upon written petition showing good and sufficient reason, allow an employer and its affiliates to pay wages less frequently than weekly provided: (1) the employer and its affiliates have more than 2,500 employees located in Rhode Island; (2) the employer's average payroll exceeds 135% of the average compensation of all employees in the state; (3) the employer makes payment of wages regularly on a predesignated date no less than twice per month; and (4) the employer provides proof of a surety bond or other sufficient demonstration of security in the amount of the highest biweekly payroll exposure in the preceding year for the employees subject to the petition (Ch. 272 (S. 2375) and Ch. 282 (H. 7314), L. 2012, effective June 19, 2012). Full Text, State Employment Law Library ¶41-46,004. Summaries, State Employment Law Library ¶41-1200.
Also, penalties for violations are revised and include penalties for violations relating to minimum wage, employee misclassification or payment of wages on public works projects.
The Director of the Department of Labor and Training has authority to enforce the state’s minimum wage and wage payment laws and hold employers liable for unpaid wages. Employers who fail to pay wages or who pay less than the applicable wage rate will be subject to a hearing and determination and may be ordered to pay wages and benefits found due, along with any other appropriate penalties or relief, plus reasonable attorneys’ fees and costs, and with interest paid at the rate of 12% per annum from the date of the nonpayment to the date of payment. Employers who violate the law will also be required to pay a further sum as a civil penalty in the amount of up to two times the total wages and/or benefits found to be due, exclusive of interest, to be shared equally between the Department of Labor and Training and the aggrieved party.
As an alternative to enforcement actions by the Department, employees have a private right of action to collect wages or benefits and for equitable relief by filing a civil action in any court of competent jurisdiction, on their own behalf or on behalf of others similarly situated. Affected parties will be able to recover unpaid wages and benefits, compensatory damages, liquidated damages in an amount of up to two times the amount of unpaid wages and benefits owed, as well as equitable relief including reinstatement, fringe benefits and seniority rights, and reasonable attorneys’ fees and costs, as well as any other appropriate relief and penalties authorized.
In addition, new law is enacted to prohibit misclassification of employees as independent contractors, making such a violation of the wage payment law, and imposing civil penalties of $500 to $3,000 for each misclassified employee for a first offense and up to $5,000 for each misclassified employee for any subsequent offense, which is to be shared equally between the department and the affected party. Such violations may be consolidated with any labor standards violation and any prevailing wage violation.
In making a determination of the amount of penalties to be imposed on employers who violate minimum wage, wage payment, or employee misclassification provisions, consideration will be given to the size of the employer’s business, the good faith of the employer, the gravity of the violation, the previous violations and whether or not the violation was an innocent mistake or willful.
Employees are also protected from retaliation when asserting, supporting, reporting, or participating in an investigation or determination of a claim. Such employees are entitled to relief under the Rhode Island Whistleblowers’ Protection Act (Ch. 306 (H. 7509) and Ch. 344 (S. 2422), L. 2012, effective June 20, 2012). Full Text, State Employment Law Library, ¶41-46,024, ¶41-46,025, ¶41-46,026, ¶41-46,029, ¶41-46,029a, ¶41-46,029b and ¶41-46,029c. Summaries, State Employment Law Library ¶41-1200.
Rhode Island Whistleblowers’ Protection Act
Employees having a grievance under the Rhode Island Whistleblowers’ Protection Act may bring a civil action for appropriate injunctive relief, or actual damages for injury or loss caused by each violation, or both, within three years after the occurrence of an alleged violation. Actions may be brought in superior court for the county where the alleged violation occurred, the county where the complainant resides, or the county where the person against whom the civil complaint is filed resides or has their principal place of business.
Removed from the Act is a provision that had required “An employee shall show by clear and convincing evidence that he or she or a person acting on his or her behalf was about to report to a public body, verbally or in writing, a violation, which the employee knew or reasonably believed had occurred or was about to occur, of a law of this state, a political subdivision of this state, or the United States.”
Also, no employer, or any person acting on behalf of the employer, shall discharge, threaten, or otherwise discriminate or retaliate against an employee or any other person for asserting, supporting, reporting, or participating in or being asked to participate in an investigation or determination of a claim relating to the state’s minimum wage or payment of wages laws. Actions for relief must be commenced with one year after the cause of action accrued (Ch. 306 (H. 7509) and Ch. 344 (S. 2422), L. 2012, effective June 20, 2012). Full Text, State Employment Law Library, ¶41-62,004 and ¶41-62,010. Summaries, State Employment Law Library ¶41-3600.
South Carolina Labor Relations
Legislation is enacted updating the state’s public policy concerning right to work. The law is amended to clarify language; to amend penalties for violations to provide a range for an applicable fine from $1,000 to a maximum of $10,000; to amend court remedies available for a person whose right to work has been violated, to permit treble damages, to require a person seeking relief to contemporaneously provide the Department of Labor, Licensing and Regulation with the basis for the lawsuit, and to provide an exception; to amend civil penalties the Department may assess, to provide that a civil penalty may not exceed $10,000 for each offense; to add a provision to allow an employer or an employee with permission to post notice regarding employee rights as a worker; and to add a requirement that certain reports be filed with the Department (H. 4652, L. 2011, enacted and effective June 7, 2012). Full Text, State Employment Law Library, ¶42-63,012, ¶42-63,020, ¶42-63,021, ¶42-63,022, ¶42-63,022a and ¶42-63,022b.
South Carolina Smoking in the Workplace
South Carolina’s Clean Indoor Air Act prohibits smoking in public indoor areas except in designated smoking areas. This law is amended to also prohibit smoking in buildings, or portions of buildings, and the outside areas immediately contiguous to these buildings owned, leased, operated, or maintained by a public institution of higher learning, that the governing board of the institution has designated as nonsmoking (Act 188 (H. 4092), L. 2012, effective June 7, 2012). Summaries, State Employment Law Library ¶42-2700.
South Carolina Unemployment Insurance
South Carolina has amended its Department of Employment and Workforce Law to provide that a worker who is discharged for misconduct connected with his or her most recent work will be disqualified for a period of 20 weeks, in addition to the waiting period, with a corresponding and mandatory reduction of the worker's benefits, to be calculated by multiplying the individual's weekly benefit amount by 20. Summaries, State Employment Law Library ¶42-1700.
South Carolina Whistleblower Protection
The state has amended its whistleblower protection law with respect to remedies of private and public sector employees alleging discrimination for filing complaints or instituting proceedings regarding occupational safety and health. The law details procedures that the director of the Department of Labor, Licensing and Regulation must follow upon receipt of a complaint, and provides that the court of common pleas shall have jurisdiction if the director determines a violation has occurred (S. 1340, L. 2012). Summaries, State Employment Law Library ¶42-3600.
Tennessee Fair Employment Practices
The Rules of the Tennessee Human Rights Commission have been amended with respect to definitions and the incorporation of federal guidelines, effective June 21, 2012. Full text, State Employment Law Library ¶44-20,125.04 and ¶44-20,125.11.
Vermont Family, Medical and Parental Leaves
An employee who took leave under the Vermont Parental and Family Leave Act (VPFLA) was not entitled to accrue paid vacation and sick time during the course of unpaid parental leave, ruled the Vermont Supreme Court (Vermont Human Rights Commission v State of Vermont, June 8, 2012, Burgess, B). Employment benefits as that term is used in the VPFLA, 21 V.S.A. Sec. 472(c), refers to insurance coverage, not the accrual of vacation and sick time, concluded the state high court. If an employee could demand accrual of paid leave from an employer under the VPFLA while on parental leave, it must follow that at least a portion of the parental leave would be rendered paid leave – a result contrary to the employer’s obligation to provide unpaid parental leave only. Summaries, State Employment Law Library ¶47-7000.
Vermont Unemployment Insurance
The maximum weekly benefit amount in Vermont effective July 1, 2012, will continue to be $425.
Also, for the period of July 1, 2012, through June 30, 2013, rates will be determined under Schedule V, and range from 1.3% to 8.4%. New employers pay 1.0%, while new out-of-state employers pay as follows: 5.8% for employers involved in the construction of buildings; 7.0% for employers involved in heavy and civil construction; and 6.3% for specialty trade contractors. Summaries, State Employment Law Library ¶47-1700.
Washington Unemployment Insurance
The minimum weekly benefit amount, which is calculated at 15% of the average weekly wage, increased by $5, to $143, for new claims opened on or after July 1, 2012. Also beginning on that day, the maximum weekly benefit amount, which is calculated at 63% of the average weekly wage, increased by $21, to $604.
Also, beginning in 2013, the taxable wage base will increase to $39,800, up from $38,200 in 2012. Summaries, State Employment Law Library ¶49-1700.
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