As we (thankfully) reach the end of 2020, we wanted to provide a year-end update on recent and upcoming state law developments. Despite the fact that state and local governments had their hands full with the COVID-19 pandemic (and passed many laws relating to that topic, which we will not cover here), they managed to crank out an impressive number of non-COVID-related employment laws.
As always, now is a good time for employers to take a deep breath, look around, assess their policies for compliance, and make any necessary updates to their handbooks, pay practices, and administration for the new year.
Given the large number of updates, we have organized by state, rather than by topic, but will note that mandatory paid leave laws and pregnancy/lactation accommodation laws were among the most popular types of laws passed this year. Heading into 2021, we anticipate more of the same, as well as continued expansion of equal pay laws, anti-harassment and discrimination laws, and continued increases to minimum wage requirements.
One exception to the state-by-state updates below—minimum wage hikes! With the federal minimum wage standing pat at $7.25 per hour, state and local governments are leading the charge to higher minimum wage rates. Our updated minimum wage chart is available here. Employers should also keep tabs on states where the white collar exemption salary threshold for overtime compensation exceeds the federal salary level of $35,568; for 2020, this includes Alaska, California, Colorado, Maine, New York, Pennsylvania (effective October 2021), and Washington.
- Small employers, get ready! Effective January 1, 2021, the SB-1383 amendments to the California Family Rights Act (CFRA) go into effect. Most significantly, the amendments extend the CFRA to cover employers of 5 or more employees. Also under the amendments expand the definition of family member to include grandparents, grandchildren, adult children, siblings and other family members with serious medical conditions. This means that it is now more likely that an employee could take up to 24 weeks of leave in a 12-month period if they are eligible under the FMLA and CFRA (e.g., 12 weeks of leave to care for a grandparent under the CFRA then 12 weeks of leave for their own serious health condition under the FMLA). There are several other changes, so almost all California employers will have to revise their policies to account for these amendments.
- Effective January 1, 2021, California’s Paid Family Leave will expand to include qualifying exigency leave.
- California has also revised its Kin Care Law (which essentially allows an employee to use any employer-provided paid sick leave for purposes of caring for sick family members) to clarify that it is up to the employee whether or not to use their accrued sick leave to care for a sick family member. The change becomes effective on January 1, 2021.
- In addition, California has amended the Fair Chance Act regulations governing criminal background checks and the hiring process; these changes became effective on October 1, 2020. The amended regulations state that an “applicant” now includes individuals who begin work before, but are still subject to the employer’s review of their criminal history. Additionally, the scope of the Fair Chance Act was expanded, requiring labor contractors and union hiring halls to comply with established regulations in choosing workers for pool or availability lists.
- California also expanded its law providing protections to victims of domestic violence, sexual assault and stalking to provide protections to employees who are a victim of a crime that caused physical injury or caused mental injury and a threat of physical injury or an immediate family member of an individual who died as the direct result of a crime. The changes go into effect on January 1, 2021.
- Finally, California employers of 100 or more employees have until March 31, 2021 to comply with the state’s pay data reporting requirement and submit their pay data to the Department of Fair Employment and Housing. Additional information is available here.
- Colorado was one of the first states to provide for COVID-related paid leave for employees. Shortly thereafter, Colorado Governor Jared Polis signed the Healthy Families and Workplaces Act into law. The Act currently provides for COVID-related paid leave, however, effective January 1, 2021, it will require employers with 16 or more employees to provide general paid sick leave to employees (all other employers have until January 1, 2022 to comply). Under the Act, employees can accrue and use up to 48 hours of sick leave per year. Sick leave can be used for a variety of specified reasons relating to the employee’s or their family members’ illness, injury or need for medical care, school or business closures, or for specified reasons related to domestic violence, sexual assault or harassment. Up to 48 hours of unused sick leave can be carried over to the next year, but unused sick leave does not have to paid out upon termination of employment. While the Act in large part mirrors sick leave laws in other jurisdictions, it also has a public health emergency leave component, pursuant to which employees can take up to 80 additional hours of paid leave. Employers must notify employees of their rights under the Act; the provided poster is available here.
- Also effective January 1, 2021 is the Equal Pay for Equal Work Act, which, along with Equal Pay Transparency Rules, expands upon existing prohibitions on sex-based pay discrimination. Under the new law, all job postings must include disclosure of compensation and a description of benefits offered with the position. Internal promotion opportunities must also include this information and must be announced to current employees.
- In addition, Colorado has joined other jurisdictions in banning natural hair discrimination, effective September 14, 2020; employers cannot discriminate against employees based upon hair texture or type or hairstyles associated with race such as braids, locs, cornrows, Afros, and headwraps.
- The deadline for employers to comply with Connecticut’s sexual harassment training requirements has been extended to February 9, 2021. Under the state’s Time’s Up Act, employers with three or more employees must provide sexual harassment training to all employees and all employers must provide such training to supervisory employees. More information can be found here.
- Beginning on January 1, 2021, employers must begin withholding employee contributions to the Connecticut Paid Leave Authority in connection with the Connecticut Paid Family and Medical Leave program; employees are scheduled to be eligible to receive benefits under the program beginning on January 1, 2022.
Georgia enacted a new law requiring all employers to provide paid breastfeeding breaks to employees. The law also requires that employers provide a private location, other than a restroom, where employees can express breast milk at the worksite. The law went into effect on August 11, 2020.
- Hawaii expanded its Family Leave law by providing a broad definition of “sibling” and allowing employees to take leave to care for grandchildren. The changes went into effect on July 1, 2020.
- Hawaii also narrowed the scope of its “ban the box” law, shortening the lookback period to further limit the prior period of time employers can inquire into and consider conviction records. This timeframe was reduced from 10 years to seven years for felony convictions and five years for misdemeanor convictions, excluding periods of incarceration. These changes went into effect on September 15, 2020.
Part Two of our year-end State Law Round-Up – available here – covers similar developments for Illinois through Washington, D.C.