Attorneys need to be aware of the growing number of new employment and labor laws enacted at the state level. These laws typically provide expanded protections as compared with their federal-law counterparts. They cover issues ranging from discriminatory practices and pay equity, to independent-contractor classification and criminal-history checks.
“Ban the Box”
Nearly one-third of all states have enacted “ban the box” legislation that bars employers from asking job applicants about their criminal backgrounds. These include California, Colorado, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington.
Several states have enacted legislation restricting the ability of employers to use nondisclosure provisions in settlement agreements involving claims of sexual harassment and discrimination. For example, New York law prohibits non-disclosure provisions unless the employee prefers to include such a provision. California recently enacted legislation extending this prohibition to all settlement agreements regardless of whether they involve claims of sexual harassment and discrimination.
The National Conference of State Legislatures reports that 18 states and the District of Columbia have enacted legislation decriminalizing (or legalizing) the use of marijuana. Several states have also enacted workplace laws protecting employees who use marijuana. For example, employers in Virginia are prohibited from requiring job applicants to disclose criminal convictions for marijuana possession. The New York legislature recently enacted a law that prohibits discrimination against employees who use marijuana outside the workplace and during non-work hours. The law also restricts employers from conducting drug tests for marijuana except in certain circumstances.
Some states have enacted pay-equity legislation that provide more comprehensive protections than the federal Equal Pay Act. For example, New York’s pay-equity law protects employees from disparate pay practices on the basis of age, race, gender, creed, color, national origin, sexual orientation, gender identity or expression, military status, marital status, disability, and a variety of other factors.
Legislation has been enacted in California, Colorado, Connecticut, Maryland, Nevada, Rhode Island, and Washington requiring employers to disclose the pay range of positions, i.e., minimum to maximum salaries, when advertising vacancies. The Colorado statute also requires employers to disclose the benefits available for vacant positions, and provide notice to current employees of vacancies that would represent promotional opportunities.
Several states have enacted legislation adopting a more stringent test for classifying workers as independent contractors. These include California, Connecticut, Delaware, Illinois, Indiana, Massachusetts, Nebraska, Nevada, New Hampshire, New Jersey, Vermont, Washington, and West Virginia. Under these laws, workers are presumed to be classified as employees unless the employer can establish: (A) that the worker is free from the employer’s control and direction; (B) that the work performed is outside the scope of the organization’s business; and (C) that the worker is customarily engaged in a business or occupation performing the same work the worker performs for the employer.
A growing number of states have enacted “CROWN Act” legislation. These laws prohibit discrimination against employees based on hairstyles associated with an individual’s race or ethnicity. California, Colorado, Maryland, New Jersey, New York, Oregon, Virginia, and Washington are among the states that have recently enacted this type of legislation.
With state legislatures becoming increasingly active, practitioners should carefully review employment and labor-law developments as they advise their clients.
Kahn, Steven C., Brown, Barbara Barish, Cutler, Jerry M. Legal Guide to Human Resources, Thomson Reuters (2008–2021).
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