United States: State Law Round-Up: Minnesota Criminal Penalties For Wage Law Violations; New York Wage Gap And Hairstyle Discrimination; Pregnancy And Nursing Protections In Maine

Last Updated: July 31 2019
Article by Ariel S. Cohen and Melissa Legault

Minnesota Enacts Criminal Penalties for Wage Law Violations

Minnesota governor Tim Waltz recently signed legislation that imposes criminal penalties (including felony charges) on employers who engage in "wage theft." Effective August 1, 2019, employers will be guilty of a felony if they wrongfully withhold an employee's pay by virtue of underpayment, misclassification, or refusing to pay an employee for mandatory breaks or overtime. To enforce this law, the Department of Labor and the Attorney General are vested with broad investigative powers, such as the right to issue subpoenas, seek testimony, and obtain documents regarding an alleged "wage theft". Further, the Department is doubling the number of state investigators to conduct investigations regarding wage theft accusations. In conducting their investigations, investigators will be permitted, with a court order, to enter the place of business of an employer or any entity that licenses or regulates the employer, during work hours, to investigate potential violations.

In addition, the Department can issue citations carrying civil penalties to employers that failed to pay an employee wages, up to $1,000. If an employer receives a citation, the employer is required to pay the employee the wages to which they are entitled, in addition to certain damages, within 15 days. Additional civil penalties can also be imposed, as necessary, if an employer fails to promptly comply with the law. To avoid these stiff penalties, Minnesota employers should ensure they promptly and properly pay employees, and should consult an attorney to ensure their policies are compliant with this new law.

New York Takes Steps to Bridge the Wage Gap for All Protected Classes and Passes a Salary History Ban

On July 10, 2019, New York Governor Andrew Cuomo broadened the state's Equal Pay Act by signing two amendments into law. The "Pay Equity Bill" makes it unlawful for an employer to pay an employee less based on his or her membership in a protected class under the New York State Human Rights Law, while the "Salary History Bill" implements a salary history ban.

New York law previously barred pay differences based on only gender, but the amended law prohibits pay differences based on all protected classes, including age, race, creed, color, nation original, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristic, familial status, marital status, or domestic violence victim status. Specifically, the law requires employers to pay employees in protected classes the same as those employees that are not in a protected class for equal or "substantially similar work." However, discrepancies in pay may still occur if the differences are based on other factors such as seniority, merit, quality or quantity of production, or another "bona fide" factor such as education, training, or experience. This amendment goes into effect in October 2019.

In addition, the new legislation prohibits employers from asking prospective employees about their prior salary. With that said, an employee can voluntarily disclose their salary history as part of the negotiation process, but an employer cannot rely on prior salary information when setting an employee's salary. This salary history ban goes into effect in January 2020. To comply with these amendments, New York employers should promptly review their employment applications, compensation policies, and salary negotiation strategies.

Hairstyle Discrimination in New York and New Jersey

As we previously discussed here and here, earlier this year, the New York City Commission on Human Rights released legal enforcement guidance regarding race discrimination on the basis of hair, stating employers cannot discriminate against Black employees by prohibiting "twists, locs, braids, cornrows, Afros, Bantu knots, or fades which are commonly associated with Black people." Following suit, on July 12, 2019, Governor Andrew M. Cuomo singed measure A.7797A/S.6209A into law, making race discrimination based on "natural hair or hairstyles" illegal in the entire state of New York. This measure amends the state's Human Rights Law and the Dignity for All Students Act by adding "traits historically associated with race, including but not limited to hair texture and protective hairstyles" as legally protected traits.

Employers in New York should review and update their dress code policies to comply with this law.

Further, while New York is the second state to ban natural hairstyle discrimination (following California as we previously reported here), the New Jersey Senate and Assembly is also currently considering a bill that would amend the state's Law Against Discrimination by expanding the definition of "race" to include protection against hairstyle discrimination. Employers should stay tuned; it is likely additional states will consider similar legislation in the near future.

Maine Provides Pregnant and Nursing Employees Additional Protections

On June 27, 2019, Governor Janet Mills signed L.D. 666 into law, extending existing protections for pregnant and nursing employees. This new law creates broad protections for employees, covering any limitation of an employee's ability to perform their job due to pregnancy, childbirth, or related medical conditions including lactation. The law requires employers to provide reasonable accommodations for pregnancy-related conditions and also provides examples of reasonable accommodations, such as, "more frequent or longer breaks; temporary modification in work schedules, seating or equipment; temporary relief from lifting requirements; temporary transfer to less strenuous or hazardous work; and provisions for lactation."

This law goes into effect on September 18, 2019. Employers in Maine should review and update their policies to comply with this law.

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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