Now that we’re almost half-way through 2023, it’s time again to review the developments in state and local labor and employment laws. State legislatures and city councils continue to be very busy making new laws and amending existing laws. In fact, due to the large number of updates, we are splitting our post into two parts. Today’s update covers Arkansas through Montana. Part two, with updates for the remaining states (New Jersey through Washington), will be posted later this week.
- The Arkansas CROWN Act amends the State’s Civil Rights Act by clarifying that race and national origin discrimination includes discrimination “on account of a natural, protective, or cultural hairstyle.” Protected hairstyles under the Act include “afros, dreadlocks, twists, locs, braids, cornrow braids, Bantu knots, curls, and hair styled to protect hair texture or for cultural significance.” The amendments are expected to take effect July 31, 2023.
- Ninth Circuit Strikes Down A.B. 51 – In an opinion issued February 15, 2023, the Ninth Circuit struck down a California law (A.B. 51), which made it a criminal offense for an employer to require an employee or applicant to agree to an arbitration provision as a condition of employment. The Court held that A.B. 51 was preempted by the Federal Arbitration Act. For background on A.B. 51 and the Ninth Circuit’s opinion, see here.
- San Francisco Private Sector Military Leave Pay – Under the ordinance, which went into effect February 20, 2023, private sector employers with 100 or more employees must pay employees on military leave the difference between their gross military pay and the gross pay they would have received had they worked their regular work schedule, for up to 30 days in a calendar year.
- Denver Adopts Civil Wage Theft Ordinance and Implementing Rules – On January 9, 2023, the Denver City Council passed a new civil wage theft ordinance, which Denver Mayor Michael Hancock signed into law the following day. Under the ordinance, Denver workers now have three years to file a wage theft complaint with the City Auditor, who is authorized to order a variety of remedies for wage theft violations including payment of withheld wages, treble damages, job reinstatement, and a fine of up to $25,000. Notably, the ordinance authorizes the Auditor to enforce violations “up the chain” by holding an employer and any other entity that has directly or indirectly contracted for labor jointly and severally liable for wage theft violations. The Auditor’s Office recently announced new rules implementing the ordinance which, among other things, explain the ordinance’s “up the chain” liability and anti-retaliation provisions.
- On January 17, 2023, the Connecticut Appellate Court held in Schimenti Construction Company, LLC v. Schimenti that continued at-will employment can be sufficient consideration for an employee’s restrictive covenant agreement.
- On April 21, 2023, Delaware Governor John Carney announced that he would allow two bills governing the legalization and regulation of marijuana to become law without his signature. Effective April 23, 2023, H.B. 1 removes all state-level civil and criminal penalties for the use or possession of one ounce or less of marijuana, making Delaware the 22nd state to legalize recreational marijuana. H.B. 2 implements H.B. 1 and went into effect on April 27, 2023. Of note for employers, H.B. 2 states that the new laws are not intended to “impact or impose any requirement or restriction . . . with respect to terms and conditions of employment.” Employers do not have to accommodate marijuana use and may still discipline employees for marijuana-related infractions and positive drug tests, provided the employee does not have a medical marijuana card.
District of Columbia
- D.C. joins the growing number of states that have enacted automatic record-clearing relief for arrest records and other non-convictions. The Second Chance Amendment Act of 2022 (D.C. Law 24-284) is one of the broadest record-clearing laws in the country, including both petition-based relief for all but the most serious violent felony convictions, and automatic relief for misdemeanors and non‑conviction records. The law makes sealing automatic beginning in 2027 for non‑conviction records, and for most misdemeanor convictions after a 10-year waiting period. It also provides for automatic expungement of marijuana convictions effective January 1, 2025, and for expungement by petition on grounds of actual innocence.
- Under S.B. 1718, effective July 1, 2023, employers with more than 25 employees in Florida are required to use E-Verify to check new employee employment eligibility. Violators may be required to repay economic development incentives or may have their licenses revoked. The law also invalidates driver licenses issued to immigrants lacking permanent legal status issued in other states and requires hospitals to collect immigration status data.
- Georgia has expanded employee rights for voting leave. Previously, employees were only entitled to two hours of time off on primary or election day, and such leave was not available if the employee had two hours to vote before or after their shift ended. With the passage of S.B. 129, effective July 1, 2023, leave is now available to employees on the days designed for advance in-person voting, and leave is available to all employees, even those who may have time before or after their shift to vote.
- Paid Leave for All Workers Act – Under Illinois’ Paid Leave for All Workers Act, which goes into effect January 1, 2024, employers will have to provide their Illinois‑based employees with a minimum of 40 hours of paid leave each year. Leave will accrue at a rate of one hour for every 40 hours worked, unless the employer chooses to frontload the leave. Employees begin to accrue paid leave when their employment starts (or on January 1, 2024, whichever is later), and leave can be used for any reason. Employers may require up to seven days’ notice if the leave is foreseeable, but may not require employees to submit any documentation or certification regarding the need to take leave. Notably, the law does not apply to employers who are covered by the Chicago Paid Sick Leave law or the Cook County Earned Sick Leave Ordinance.
- Chicago Criminal History Restrictions – Pursuant to Ordinance 2023-1329, Chicago’s criminal history screening law is amended, effective April 24, 2023. The amended ordinance now requires: (1) an individualized assessment; (2) a pre-adverse and final adverse action notice when employers are assessing criminal records; and (3) additional language in an adverse action notice. When performing an individualized assessment, employers may only base an adverse employment action on an individual’s criminal conviction record if there is a “substantial relationship” between the individual’s criminal offense(s) and the job sought or held or the employer believes that the individual poses an unreasonable risk to the property or safety of the company’s workforce, customers, or members of the public, based on the individual’s criminal offense(s). Further, when providing the adverse action notices, employers must include the specific reasoning for the disqualification from employment within both the pre-adverse action notice and final adverse action notice and state within their final adverse action notice that the individual has the right to file a charge within the Chicago Commission on Human Relations.
- Chicago Expands Nondiscrimination Provisions – With the passage of O2022-3993, Chicago now prohibits employers from discriminating against applicants or employees based upon their decisions regarding reproductive health or gender-affirming care.
- Kentucky has become the 38th state to legalize medical marijuana. Under the medical cannabis law, employers are not required to permit or accommodate an employee’s use of medical marijuana in the workplace. Employers are permitted to maintain zero-tolerance or drug-free workplace policies, including testing for marijuana. However, a registered cardholder cannot be considered under the influence of marijuana solely because of the presence of marijuana metabolites in a drug test. Rather, to demonstrate impairment, an employer must conduct a behavioral assessment and have a positive drug test, then the burden of proving non-impairment shifts to the employee. Notably, the law expressly provides that it does not permit a cause of action against an employer for wrongful discharge or discrimination. The regulations are to be finalized by July 1, 2024, and the main provisions of law will take effect on January 1, 2025.
- Paid Leave Delay – Maryland’s legislature has voted to delay the start date for the state paid family and medical leave program by one year. Under S.B. 828, contributions to the program will now begin October 1, 2024, and employees will be able to start using benefits on January 1, 2026.
- Non-Compete Law Amended – Maryland’s non-compete restrictions have been amended effective October 1, 2023; previously, non-competition agreements were prohibited with employees earning equal to or less than $15 per hour or $31,200 per year; S.B. 591 modifies that threshold to “150% of the state minimum wage rate….” As of January 1, 2023, the Maryland minimum wage was $13.25; it goes up to $14.00 per hour on January 1, 2024 and $15.00 per hour on January 1, 2025.
- Legalizes Recreational Marijuana – Maryland has joined the bandwagon, legalizing adult use of marijuana, however the law does not address use of marijuana by employees, thus employers can continue to prohibit marijuana use and engage in drug testing for marijuana.
- Right to Work Law Repealed – Michigan became the first state in decades to repeal its right to work law. Effective March 30, 2024, union security clauses in collective bargaining agreements will no longer be prohibited. This means that Michigan employees in unionized workplaces can be contractually required to join a union or pay union dues, fees, or other charges as a condition of employment.
- Workplace Nondiscrimination Protections Expanded – Michigan has passed legislation amending the state’s anti-discrimination law, by including sexual orientation and gender identity as protected categories, and by expanding the definition of sex discrimination to include employment actions taken based upon an employee’s termination of a pregnancy.
- Current Paid Medical Leave Law Remains Intact – In an opinion issued January 26, 2023, the Michigan Court of Appeals reversed a 2022 Court of Claims decision voiding amendments to Michigan’s Paid Medical Leave Act (PMLA). In so doing, the Court of Appeals effectively blocked an expansion to the PMLA which would have, among other things, covered employers with fewer than 50 employees and increased the annual sick leave entitlement. The Court of Appeals’ decision means that for now, PMLA still only applies to employers of 50 or more employees, and employees are only entitled to up to 40 hours of paid leave per benefit year. However, on February 10, 2023 the decision was appealed to the Michigan Supreme Court.
- Creates Paid Family and Medical Benefit Insurance Program – With the passage of H.F. 2, Minnesota has joined the ranks of states providing employer-subsidized insurance to provide up to 12 weeks’ of wage replacement benefits when eligible workers take leave for certain family and/or medical reasons. The law is set to go into effect in 2026, with employer reporting requirements set to begin on July 1, 2024.
- Minnesota CROWN Act – Minnesota has joined the growing list of states (19 and counting) to have enacted some version of the CROWN Act. On February 1, 2023, the Minnesota Human Rights Act was amended by expanding the definition of “race” to include “traits associated with race, including but not limited to hair texture and hair styles such as braids, locs, and twists.”
- Bloomington Earned Sick and Safe Leave Ordinance – The ordinance, which takes effect July 1, 2023, will require employers with 5 or more employees to provide their Bloomington-based employees with one hour of paid sick and safe leave for every 30 hours worked within the geographic boundaries of Bloomington. The ordinance covers any employee (including part-time and temporary employees) who works at least 80 hours per year in Bloomington. Accrual is capped at 48 hours per year, and employees are entitled to carry over a maximum of 80 hours of accrued, unused leave into the following year.
- St. Paul Amends Sick and Safe Leave – On January 19, 2023, St. Paul Mayor Melvin Carter signed an amendment to the city’s Earned Sick and Safe Time ordinance (ESST). Effective February 18, 2023, a covered employee now includes temporary and part-time employees “who perform work within the geographic boundaries of the city” for at least eighty hours in a year, rather than employees who are simply headquartered in the city.
- Employee Free Speech Protected – Under S.B. 270, effective October 1, 2023, employees in Montana cannot be fired for engaging in legal expressions of free speech, including on social media, unless the expressions violate the employers’ policy or a contract. Employers would thus be wise to review their policies to ensure they include any desired restrictions.