2020 is upon us and Federal, local and state governments have been busy establishing new labor laws. In Part 1, we looked at federal employment laws that were changing. For 2020 there are also an abundance of state labor laws changing. It is very important to keep up-to-date with these changes. Let’s look at state and local requirements.

State/Local Posting Requirements

There is an average of 75 new or changed state/local labor law poster requirements every year. In addition to federal posting requirements, an employer should ensure compliance with individual state and local requirements for workplace posters. These are mandatory requirements and failure to update labor law posters put businesses at risk for noncompliance fines.

Here is a link to a website that will assist you with the required postings by state: https://www.employmentlawhandbook.com/postings/

Overtime Rules

The U.S. Department of Labor (DOL) has finalized a $35,568 salary threshold for the white-collar exemptions from overtime pay under the federal Fair Labor Standards Act (FLSA). The new rate will take effect Jan. 1, 2020, but some employers need to comply with higher state levels.

  • The general rule in employment law is that businesses must comply with the law that provides the most protection for the employee. If states have their own exemption tests—such as California—the employer must satisfy whichever salary threshold is greater, whether it’s the federal or state rate.
  • Some states may have different duties tests as well as salary cutoffs, and it is important to understand and comply with the more stringent of the applicable rules.
  • Many states set their own minimum wage. In some cases, the exempt salary threshold is tied to that rate. For example, in California, the salary threshold for the executive, administrative and professional exemptions is double the state minimum wage. When the minimum wage goes up statewide, so does the exempt salary threshold. California’s threshold is currently at $49,920 (annualized) for businesses with at least 26 employees and $45,760 for those with fewer. The rates increased to $54,080 and $49,920, respectively, on January 1, 2020.

Update your employee handbook to ensure compliance with the most recent laws

An employer should strive to keep its employee handbook current with the rapid pace of legal developments on the federal, state and local level.

  • Update your Equal Employment Opportunity (EEO) Documentation – the following states have updates: Alabama, California, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Maine, Missouri, Nebraska, New Jersey, New Mexico, New York (including New York City), Oklahoma, Oregon, and Washington.
  • Update Reasonable Accommodation Policies – the following states have updates: California, Baltimore Maryland, District of Columbia, Kentucky, Maine, New York (including New York City), Oregon, Pittsburgh Pennsylvania, and Washington.
  • New and Amended Leave Laws – the following states have updates: California, Connecticut, Dallas Texas, Illinois, Maine, Maryland, Massachusetts, Michigan, New Jersey, New Mexico, New York (including Westchester County), North Dakota, Oklahoma, Rhode Island, San Antonio Texas, Texas, and Utah
  • Revise Safe Driving Policies – the following states have updates: Arizona, Arkansas, Maine, and Minnesota
  • Smoke-Free Workplace Policies (amendments include verbiage for vaping and legalized use of marijuana) – the following states have amendments: Colorado, Florida, Nevada, New Mexico, Oklahoma, and South Dakota.

Minimum Wage

Many states and municipalities have increased their minimum wage in 2020. Here is a link to assist you with your state: https://www.nfib.com/content/news/alabama/state-by-state-minimum-wage-update/

Pay/Salary History Inquiry Ban

Several states and municipalities prohibit an employer from asking about or considering a job applicant’s salary history during the recruiting and hiring process. The intent of these laws is to close the gender wage gap by prohibiting employers from relying on a candidate’s past salary to determine compensation.

Employers subject to these laws must ensure that their job applications and recruiting materials are compliant and that HR employees and supervisors are trained not to request the prohibited information when interviewing job candidates.

All employers, whether subject to a salary history law or not, should ensure compliance with the Federal Equal Pay Act, which requires equal pay for equal work regardless of gender. This information is usually included in the EEO Statement.

Sexual Harassment Training

Over the past two years, we’ve seen a significant increase in charges filed with EEOC. Because of this, we’ve also seen an increase in new initiatives and programs to prevent sexual harassment in the workplace.

The good news is, we have seen progress at the state level, with many individual states pushing through legislation. Changes include everything from victims of sexual harassment being allowed to break nondisclosure agreements and other employment contracts without penalty to mandatory annual sexual harassment training for all employees—to name just a few. There is also a push to change what the standards for ‘harassment’ are. Currently, the behavior must be ‘severe and pervasive’ to qualify, which could soon be revised to include a broader spectrum of behaviors.

The following states require sexual harassment training: California, Connecticut, Delaware, District of Columbia, Hawaii, Maine, Massachusetts and New York.

The following states highly recommend it but do not require it at this time: Idaho, New Jersey, Ohio, Rhode Island, South Dakota, and Vermont.

Many states require only state and/or government employees to participate in sexual harassment training.

Marijuana Laws and Drug-Free Workplace

Although marijuana is increasingly legal at the state level for medical and recreational purposes, an employer may generally ban employees from bringing marijuana to work or using it during working hours.

Employers should promote drug-free workplace policies. Under the Occupational Safety and Health Act (OSH Act) and similar state laws, employers have a general duty to provide a safe work environment.

  • Implement a policy regarding a drug-free workplace.
  • Update your employee handbook with a drug-free workplace statement.
  • Implement a drug and alcohol-free workplace policy.

Pre-employment Drug Testing

In most states, applicant drug testing is permissible as long as:

  • The employer provides advanced notice of the testing (through the job posting, job application or hiring process);
  • The employer has provided the applicant with a conditional job offer;
  • All applicants for the same job are tested similarly; and
  • A state-certified laboratory administers the test.

However, given the changing legal landscape, an employer must determine whether testing for marijuana is a necessity for a specific position. If working in public safety, construction or healthcare, or if working with sensitive populations, drug testing may be encouraged or legally required. For other positions, it is important to make sure that the testing is job-related and consistent with business needs. If testing, businesses must provide advance notice of policies and procedures in an employee handbook or other policies. Also review relevant state and local laws regarding drug testing procedures, as some jurisdictions – such as New York City and Nevada – now prohibit testing applicants for marijuana with exceptions.

  • Review resources regarding drug testing of applicants.
  • Learn how to conduct drug testing of applicants.
  • Provide applicants with an acknowledgment and consent form.

Drug Testing Current Employees

In most cases, employers must demonstrate a legitimate need for drug testing of current employees. Many states limit random testing unless the employee is in a safety-sensitive position or industry.

Beyond this, drug testing of current employees may be permissible if:

  • The employer has a reasonable suspicion that job performance is suffering because the employee is abusing drugs;
  • The employee recently completed a drug rehabilitation program; or
  • The employee is injured on the job and the injury may be connected to substance abuse.

An employer that chooses to test current employees for substance abuse must follow any applicable state and local laws. The employer must also provide advance notice of the purpose and parameters of the testing, how testing will be conducted, what constitutes a failed test and the penalties for a failed test. Employers should also be aware that some jurisdictions are enacting laws providing employees (or applicants) with an opportunity to dispute the findings of any drug test for marijuana by providing a legitimate medical explanation.

If an employee fails a drug test, determine how to handle the results and what actions may be taken. Consider providing counseling and assistance and a second chance to become clean or end addiction through medication, counseling, and therapy.

  • Learn about drug testing in the age of marijuana legalization.
  • Consider how opioids and marijuana are changing the drug testing landscape.
  • Provide employees with an acknowledgment and consent form.

Workplace Policies

Make sure to address marijuana use in other workplace policies such as disciplinary policies, no-smoking policies, and safe driving policies. In doing so, this will notify employees what is permissible with respect to marijuana in the workplace. Furthermore, employers should be aware of state smoking law amendments that prohibit the smoking and vaping of marijuana in indoor workspaces.

Enforcing workplace policies regarding drug testing and related issues in a uniform and consistent manner is important to avoid a claim for discrimination and/or unfair treatment.

  • Draft, implement and enforce workplace policies with respect to smoking, employee conduct and discipline, and safe driving.
  • Address smoking, drug testing, discipline and safe driving in the employee handbook.

Adverse Action Against Marijuana Users

If an employer needs to take adverse action against an individual who the employer knows uses marijuana for medical or recreational purposes, it is best practice to have a legitimate non-discriminatory reason for taking such action and make sure that this is thoroughly documented and communicated to the employee. Some state medical marijuana laws ban employers from taking adverse employment actions against an employee who is a registered qualifying patient based solely on the employee’s status as a registrant with the Cannabis Regulatory Commission. Additionally, an individual’s disability may be protected under federal and state disability discrimination laws. It is critical to be aware of state laws that may provide employees with additional protections.

Content source: XpertHR.com

Sheila Grosdidier, SCP
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