United States: New Year, New Laws: A Summary Of Hot Button Employment Laws To Hit The Books In 2016

From coast to coast, as the calendar turned to 2016, a host of new employment laws became effective.  States and local government are imposing broad obligations on employers well above what federal law requires.  This patchwork of legal requirements will continue to bedevil employers.  As you begin implementing your resolutions for 2016, here's our take on the major changes that went into effect across the nation last week:

Minimum Wage Increases Across the Country

Minimum wage increases should be on the radar of every employer with minimum wage increases becoming effective on January 1, 2016 in the following cities and states: Arkansas ($8.00); California ($10.00)1; Colorado ($8.31); Connecticut ($9.60); Hawaii ($8.50); Portland, Maine ($10.10); Massachusetts ($10.00); Michigan ($8.50); Nebraska ($9.00); New York (9.00); Rhode Island ($9.60); South Dakota ($8.55); Vermont ($9.60) and West Virginia ($8.75).

While there are no signs that the federal minimum wage will surpass the current $7.25 level, cities and states will continue to lead the trend of minimum wage increases throughout 2016 when the following cities and states will also increase their minimum wages:  Birmingham, Alabama (July 1); Berkeley, California (Oct. 1); Emeryville, California (July 1); Los Angeles, California (July 1); San Francisco, California (July 1); Johnson County, Iowa (May 1); Maryland (July 1); Minnesota (Aug. 1); Tacoma, Washington (Feb. 1).

California Expands Employee Rights

Equal Pay Amendments

California amended its Equal Pay Act to provide stronger protections for employees. The new amendments (1) require all California employers (regardless of size) to comply with the California Equal Pay Act; (2) eliminate the "equal pay for equal work" requirement and prohibit employers from paying disparate wage rates to one sex where the employees perform "substantially similar work when viewed as a composite of skill, effort and responsibility and performed under similar work conditions" and (3) eliminate the requirement that the wage differential be in the "same establishment". For more information on California's Equal Pay Act Amendments, please see Orrick's previous post Time to Pay Up? California Adopts Stronger Equal Pay Protections and Orrick's article As Calif. Goes on Equal Pay, So Goes the Nation?

FEHA Amendments

Effective January 1, the state's civil rights statute, the Fair Employment and Housing Act will provide additional protections to employees from retaliation. The first amendment (AB 1509) provides protection for employees of family members who engage in "protected activity." AB 1509 prohibits employers from retaliating against an employee because the employee is a family member of a person who has, or is perceived to have engaged in any acts protected by the Labor Code sections 98.6 (complaints of discrimination), 1102.5 (whistleblowers) and 6310 (temp workers). The second amendment (AB 987), adds requests for disability or religious accommodations within the definition of "protected activity" for retaliation claims.

Kin Care Leave Amendments

California also amended its Family-School Partnership Act and Kin Care Leave (SB 579) to permit eligible employees to take protected time off to find, enroll, or reenroll a child in school or with a child care provider. The amendment also permits employees to use kin-care leave for the purposes provided in California's Paid Sick Leave Law (Labor Code Sections 245 et seq.).

For a summary of all of the California legislation that went into effect, please see Orrick's previous post Legislative Updates Employers Should Know About to Avoid Wringing in the New Year.

Illinois Amends Equal Pay Act

The Illinois Equal Pay Act makes it unlawful for an Illinois employer to pay an employee less than the employer pays to another of the opposite sex for the same or substantially similar work on jobs that require equal skill, effort and responsibility and that are performed under "similar working conditions". Effective January 1, the Illinois Equal Pay Act will cover all employers (regardless of size). Prior to the amendment, the Equal Pay Act only applied to employers with four or more employees. Additionally under the Equal Pay Act amendments, any violation of the Act will subject employers to civil penalties, subject to certain exceptions (e.g. any factor that would constitute unlawful discrimination under the Illinois Human Rights Act.).

New York State and New York City Add New Employment Laws to the Books

Women's Equality Act

The Women's Equality Act (WEA) amends New York's Equal Pay Law (NY Labor Law § 194) and New York's Human Rights Law (§ 296), effective January 19, 2016. The WEA broadens the definition of "same establishment" under the Equal Pay Law to include workplaces in the same geographical region, making it more difficult for employers to defend wage differentials. The WEA also requires employers, pursuant to the State Human Rights Law to provide reasonable accommodations for pregnancy-related conditions unless it will cause undue hardship on the employer and prohibits discrimination based on familial status (i.e. pregnant, has a child or is in the process of securing legal custody of any person under the age of eighteen).

New York City Commuter Benefits Law

Effective January 1, 2016, non-governmental employers with twenty or more full-time non-union employees in New York City must provide full-time employees with the opportunity to use pre-tax income to purchase qualified transportation benefits. For more information on the Commuter Benefits Law, please see Orrick's previous post All Aboard: New York Enacts Commuter Benefits Law.

Oregon Requires Paid Sick Leave, "Bans the Box" and Amends Existing Laws

Paid Sick Leave Preemption Law

Effective January 1, SB 454 preempts all local sick leave ordinances, striking down Portland and Eugene's sick leave ordinances. The law requires all employers with ten or more employees (six or more in Portland) to provide paid sick leave and employers with less than ten employees (less than six in Portland), to provide unpaid sick leave.

Employers have two options for providing sick leave. The accrual method, in which employees earn one hour of sick leave for every thirty hours worked and the front-loading method, in which an employer may provide each employee with at least forty hours of sick leave at the beginning of each year. Employees are allowed to carry over up to forty hours of unused sick team each year, but employers may cap usage to forty hours per year.

Additionally, SB 454 allows broad reasons for using sick leave. In addition to using leave for an employee's own illness, injury or health condition, it can be used for the illness, injury or health condition of a family member (defined as a spouse, parent, parent-in-law, child grandparent, or grandchild); to address domestic violence, harassment, sexual assault, or stalking of the employee or the employee's minor children or dependents; and for a public health emergency.

Ban the Box Law

H.B. 3025, restricts Oregon employers from inquiring about an applicant's criminal background during the initial stages of the application process. Effective January 1, employers are prohibited from requiring an applicant to disclose a criminal conviction: (1) on an employment application; (2) prior to an initial interview; or (3) prior to a conditional offer of employment (if no interview conducted).

Social Media Privacy Law Amendments

In 2014, Oregon joined the growing number of states prohibiting employers from demanding access to an employee's personal social media account. HB 2654 prevents an employer from requiring an employee or applicant to disclose her username, password, or "other means of authentication that provides access to a personal social media account." Employers are also prohibited from requiring an employee or applicant to friend, follow or connect via a social media account or allow an employer to "shoulder surf" while the employee or applicant is logged in.

Effective January 1, 2016, SB 185 adds more restrictions on an employer's ability to access employees' social media accounts. Under the new law, Oregon employers are prohibited from requiring an employee to create or maintain a social media account as a condition of employment. Additionally, the law prohibits employers from requiring the employee or applicant to permit the employer to advertise on their personal social medical account.

Footnotes

1 For more information on California's minimum wage increase, please see Orrick's previous post Minimum Wage, Maximum Headache: California's Minimum Wage Hits $10 in 2016.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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26 Sep 2018, Seminar, Tokyo, Japan

Orrick’s Global Japan Practice is hosting a series of “Orrick Library” seminars to explore legal issues in various fields in Japan as well as the United States, Asia and Europe

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Employment Partner, Mandy Perry and Chair of Orrick's Global Employment Law Practice, Mike Delikat will be participating in the Global Business Protections 2018: International Restrictive Covenants and Confidential Information Conference.

10 Oct 2018, Conference, Florida, United States
Julie Totten is Program Chair of this year’s conference, Lynne Hermle is speaking on women in the courtroom, boardroom, and c-suite, and Erin Connell is speaking on pay equity and pay transparency.

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