Now that we’re almost half-way through 2022, it’s time again to cover all of the development in state and local labor and employment laws. It’s been a busy time in the state legislatures and city councils, with lots of new laws and amendments to existing laws. In fact, due to the large number of updates, we are splitting our post into two parts. Today’s update covers states in the first half of the alphabet. We’ll post part two, with updates for the remaining states (Ohio through West Virginia), later this week.
- Amendments to the San Francisco Family Friendly Workplace Ordinance (FFWO) take effect July 12, 2022. Previously, the FFWO granted employees the right to request a modified work arrangement to assist with caregiving responsibilities. Changes to the FFWO include: (1) expanding the definition of a covered employee to include employees teleworking out of the City; (2) providing covered employees the right – instead of merely the right to request – to a modified working arrangement, upon receipt of the employee’s written notice, unless the modified schedule would cause an undue hardship to the employer; and (3) mandating that employers engage in a good-faith interactive process with employees whose request for a modified working arrangement is denied. The amended FFWO also modifies the definition of caregiver to include care for any person 65 or older and in a family relationship with the employee; previously, this section only applied if the person was the caregiver’s parent.
- On May 10, 2022, the Colorado legislature passed HB22-1317. If signed by Governor Polis (as anticipated), the law would sharply limit Colorado employers’ use of non-compete and non-solicitation agreements for “low wage” workers, effective on or about August 10, 2022. Specifically, the law (with a few exceptions) would void new non-compete agreements for employees paid less than the threshold amount for “highly compensated employees” (currently $101,250 annually) and would void new non-solicitation agreements for employees making less than 60% of this amount ($60,750 annually). Reasonable confidentiality provisions are permitted if they do not prohibit disclosure of information that (i) arises from the worker’s general training or experience, (ii) is readily ascertainable to the public, or (iii) which a worker is otherwise legally entitled to disclose. However, even permissible restrictive covenants are void if they do not comply with detailed notice requirements for applicants and employees. Violations may result in a fine of $5,000 per worker, as well as damages, costs and attorney fees.
- On May 17, 2022, Governor Lamont signed an amendment to Connecticut’s law prohibiting employers from taking adverse action against employees for exercising their First Amendment rights. Effective July 1, 2022, Connecticut employers will be prohibited from requiring or coercing non-managerial employees into attending or participating in meetings about the employer’s views on religious or political matters.
- On May 9, 2022, Delaware became the 11th state to enact a paid family and medical leave law, Senate Substitute 2 for Senate Bill 1. Under the Healthy Delaware Families Act, employers with 10-24 employees in Delaware are subject to the parental leave portion of the law only, while employers of 25 or more employees in Delaware are subject to the law’s full provisions. Employer and employee contributions are scheduled to begin in January of 2025, and benefits are scheduled to become available to eligible employees in January of 2026.
District of Columbia
- Last year, we discussed D.C. Act 23-563, a sweeping law which will effectively prohibit D.C. employers from requiring or otherwise entering into non-compete and anti-moonlighting provisions in employment contracts or policies (the law only applies to new non-competes). On March 28, 2022 – just days before the law was set to go into effect – Mayor Bowser signed legislation delaying the law’s implementation to October 1, 2022.
- On April 22, 2022, FloridaGovernor DeSantis signed HB7 – known as the “Stop the Wrongs to Our Kids and Employees” (Stop W.O.K.E.) Act – into law. HB7 amends Florida’s Civil Rights Law by making it an unlawful discriminatory practice for Florida employers with 15 or more employees to subject any individual, as a condition of employment, to “training, instruction, or any other required activity” designed to promote, compel, or inculcate the belief in eight prohibited concepts. Examples of concepts HB7 prohibits include that one race, color, sex or national original is morally superior to another, or that an individual is inherently racist, sexist, or oppressive by virtue of their race, sex, color or national origin. The law is set to take effect on July 1, 2022.
- Kentucky’s emergency responder leave law prohibits employers from terminating an employee who is an emergency responder: (1) if the employee is late or absent due to their responding to an emergency before work, and (2) if the employee is absent for up to 12 months for injuries incurred in the line of duty. HB 562 amends this law. Effective July 14, 2022, Kentucky employers also will be prohibited from terminating their emergency responder employees for taking leave following a “critical incident” (defined as “any event that has a stressful impact sufficient to overwhelm the [emergency responder’s] usual coping strategies.”).
- Vacation Pay Out: With the passage of LD 225, Maine became the most recent state to mandate employers with at least 11 employees pay out all accrued, unused vacation upon cessation of employment.
- CROWN Act: Add Maine to the growing list of jurisdictions prohibiting discrimination against employees on the basis of traits typically associated with race, including hairstyle and hair texture, which we previously wrote about here.
- Restrictions on NDAs: Maine employers are now prohibited from including provisions in agreements with employees (including employment agreements, settlement agreements and separation agreements) that limit or waive the rights of employees, applicants, or interns to discuss unlawful employment discrimination or reporting or testifying to enforcement agencies, or disclosing factual information related to a claim of unlawful employment discrimination. There are limited exceptions for settlement and separation agreements that meet certain conditions, including providing for separate monetary consideration for the provision.
- On April 8, 2022, Maryland became the tenth state (plus the District of Columbia) to enact a paid family and medical leave law (SB 275). The law covers any employer with at least one employee in Maryland. It establishes an insurance program for family and medical leave benefits, which eligible employees may begin to apply for beginning January 1, 2025. Employers and employees must begin contributing to the fund starting October 1, 2023, although employer contributions are only mandatory for employers with at least 15 employees. Employees are generally entitled to a maximum of 12 weeks of paid job-protected leave; however, employees may be entitled to up to 24 weeks under certain circumstances.
- Under the Massachusetts Wage Act (the “Act”), Massachusetts employers must pay discharged employees all wages owed – including regular wages and accrued, unused vacation – on the day of discharge. In Reuter v. City of Methuen, SJC-13121 (Mass. April 4, 2022), the Massachusetts Supreme Judicial Court held that the Act’s liquidated damages provision refers to triple the amount of late-paid wages, as opposed to the trebling of interest, owed to an employee. Accordingly, employers are strictly liable for any delay in payment of wages owed in an amount equal to three times the unpaid wages; the length of the delay is irrelevant, as is the employer’s intent or honest mistake.
- NYC Pay Transparency: As we reported previously, New York City passed a pay transparency law that requires NYC employers with four or more employees to disclose the minimum and maximum annual salary or hourly wage of any advertised job, promotion, or transfer opportunity that the employer “in good faith believes” it would pay for an advertised position at the time of posting. A recent amendment to the law pushes its effective date back from May 15, 2022 to November 1, 2022. The amendment also eliminates one of the law’s most cumbersome features – specifically, its broad application to any position that could be performed in NYC. As amended, the law no longer applies to positions that will not be performed, at least in part, in New York City.
- Expanded Harassment and Discrimination Protections: Employers should be aware of two recent New York laws adding to workplace harassment, discrimination and retaliation protections for New York employees.
- First, the New York State Division of Human Rights (NYSDHR) will establish a toll-free, confidential hotline by July 14, 2022 to provide counsel and assistance to individuals with complaints of workplace sexual harassment. Employers must include “information on the hotline” in any materials posted or provided to employees regarding sexual harassment. The NYSDHR is expected to issue guidance clarifying what type of information employers must include.
- Second, effective March 16, 2022, the definition of prohibited retaliation under the New York State Human Rights Law (NYSHRL) has been amended to include “disclosing an employee’s personnel files” because the employee opposed a discriminatory practice or “filed a complaint, testified or assisted in any proceeding.” However, employers may disclose an employee’s personnel file “where such disclosure is made in the course of commencing or responding to a complaint [under the NYSHRL] . . . or any other civil or criminal action or other judicial or administrative proceeding as permitted by applicable law.”
- Electronic Monitoring Law: Under S2628, private employers with a place of business in New York that electronically monitor employee communications must notify their employees of such monitoring. Specifically, covered employers must (1) post a notice of e-monitoring at the employer’s worksite in a conspicuous place for employees to view, and (2) provide prior notice (written or electronic) to new hires subject to monitoring, and obtain the new hire’s acknowledgement (written or electronic) of such monitoring. For additional details, please see our previous reporting on the law.
That’s all for now. Part two, covering Ohio through West Virginia, will be posted later this week.