This month's State of the States from Littler's Workplace Policy Institute focuses on these key trending topics: equal pay, paid sick leave, drug testing, harassment, discrimination and accommodation.
Laws to promote gender pay equity gained momentum in 2018. Since the beginning of 2018, New Jersey and Washington State enacted laws to strengthen their equal pay statutes. Other states have enacted bills to prevent employers from inquiring about or relying on an applicant's salary history in hiring and setting compensation levels. The idea behind this move is to prevent a discriminatory pay decision from following applicants throughout their careers. In May 2018, Connecticut and Vermont joined this legislative trend by enacting bans on salary history inquiries in their states.
To date, six states and several cities have adopted laws or ordinances limiting salary history inquiries.
Similar laws in other states continue to advance. In Illinois, the Senate approved a bill, HB 4163, that would — among other requirements — prevent employers from screening job applicants based on their wage or salary history. The bill would entitle an individual to recover compensatory and special damages, and to seek injunctive relief and reasonable attorneys' fees. A similar measure (SB 3100) under consideration failed to advance out of committee. That bill would have allowed employers that had conducted a self-evaluation of its pay practices and demonstrated efforts toward eliminating any pay differential an affirmative defense to a charge of pay discrimination.
Another pay-related bill, HB 4743, has cleared both of Illinois' legislative chambers. This bill would amend the state's equal pay statute to explicitly prevent employers from paying wages to African-American employee at a rate less than the rate at which the employer pays non-African-American employees who perform the same or substantially similar work on a job that requires equal skill, effort, and responsibility and is performed under similar working conditions.
It is unclear whether Illinois' pending bills will move forward. Although Democratic lawmakers hold a majority in the state's general assembly and senate, the governor, Bruce Rauner, is Republican, and has not yet indicated his position on these bills should they reach his desk. Tellingly, Rauner did veto a salary history bill last year.
In May, New Jersey became the 10th state to enact a paid sick leave mandate for private employers. The new law, which is slated to take effect on October 29, 2018, explicitly preempts 13 existing local paid sick leave ordinances. Employees in the Garden State will be able to accrue one hour of paid leave for every 30 hours worked, up to 40 hours in a benefit year.
Duluth, Minnesota could be the next locality to enact paid sick leave obligations. On May 29, the Duluth City Council approved an amended version of the proposed Earned Sick and Safe Time Ordinance that would allow workers to earn an hour of paid time off for every 50 hours worked, up from every 40 hours worked. The ordinance would impact employers with five or more employees in Duluth. Other approved amendments exempt independent contractors, seasonal employees and student interns from coverage.
Maine continues to tinker with its fledgling recreational marijuana law. Voters in 2016 approved a ballot initiative legalizing the possession, use, and cultivation of limited amounts of marijuana. Since that time, the state legislature has struggled to establish standards for certain issues, including regulation of the anticipated retail market. In May 2018, however, Maine lawmakers overrode Gov. Paul LePage's veto of a bill (LD 1719), adopting An Act to Implement a Regulatory Structure for Adult Use of Marijuana ("the Adult Use Act"). The Adult Use Act supersedes prior law and took immediate effect.
Of particular interest to employers, the Adult Use Act removed a provision in the previous statutory scheme that precluded employers from refusing to employ or otherwise penalizing workers who consumed marijuana outside work. The Adult Use Act eliminated that specific term but left unchanged an employer's ability to prohibit the use, possession, or cultivation of marijuana in the workplace. Maine employers are also free to implement workplace policies restricting marijuana use and to discipline employees that are under the influence of marijuana at work. It is unclear whether or how the Maine Department of Labor might change its guidance for employers on pre-employment testing and disciplinary issues following the Adult Use Act's removal of the antidiscrimination language.
Also in May, the Minnesota house introduced a bill (HF 4541) that would legalize marijuana for adult recreational use. Similarly, the Missouri house referred two measures to committee (HB 1731, HB 1989) that would authorize personal use of marijuana. Rhode Island also introduced a bill (S 2895) to legalize, regulate, and tax recreational marijuana. Existing laws in these states permit only certain medicinal uses for marijuana products.
As anticipated, state and local governments have spent much of 2018 exploring various types of legislation aimed at curbing sexual harassment in the workplace. States are considering proposals such as mandatory sexual harassment training, restrictions on nondisclosure agreements, and added protections for employees from retaliation if they are victims of sexual harassment.
Both chambers of the Illinois legislature passed a bill (HB 4572) that would widen the definition of "employer" under the state's human rights act. Instead of applying to employers with 15 or more employees, the law, if amended, would cover any person employing one employee within Illinois during 20 or more calendar weeks. It remains to be seen how the bill will fare if it reaches Gov. Bruce Rauner's desk.