State Employment Law Library Update
October2014
Same-sex marriage
The U.S. Supreme Court began its October 2014 Term by declining the several invitations to take up the lawfulness of same-sex marriage bans in five states. The order, issued on Monday, October 6, 2014, denied cert in each case without elaboration. As a result, same-sex marriages that were placed in legal limbo in Utah may now receive the full accord of benefits extended to married couples. In Indiana, Oklahoma, Virginia and Wisconsin, stays that prevented same-sex marriages from taking place despite court decisions invalidating the laws that barred them will no longer serve as a barrier to those who wish to wed.
All of the petitions for cert sought review of lower court decisions finding unconstitutional state laws limiting marriage to opposite-sex couples, regardless of whether the limitation was approved by voters or mandated by legislation. Challenges to state laws that barred same-sex marriage and prohibited recognition of same-sex marriages lawfully performed in other states were raised in the wake of the Supreme Court’s landmark United States v. Windsor decision in June 2013. The Justices struck down as unconstitutional the definition of marriage as a man-woman union in Section 3 of the Defense of Marriage Act. However, DOMA left open the question of whether a state may constitutionally deny its citizens the benefits or protections of the state’s laws based only on the sex of the person that a citizen chooses to marry.
Petitions for cert challenging federal court decisions answering that inquiry in the negative were filed after federal appeals courts struck down same-sex marriage bans in Indiana, Oklahoma, Utah, Virginia and Wisconsin.
None of the challenged appeals court opinions below had upheld a same-sex marriage ban; nor had any upheld a refusal to recognize a same-sex marriage sanctified in another state. One can only speculate that this may be the reason the Justices declined to grant cert at this point on any of the petitions.
For ready access to what is new and what has changed in state employment law, here is a rundown of this month's other news:
California Background Checks
California Governor Edmund G. Brown, Jr. signed the Fair Chance Employment Act into law on September 30, 2014.
The new law, which will take effect January 1, 2015, will require that any person submitting a bid to the state on a contract involving onsite construction-related services shall certify that the person will not ask an applicant for onsite construction-related employment to disclose orally or in writing information concerning the conviction history of the applicant on or at the time of an initial employment application.
The law shall not apply to a position for which the person or the state is otherwise required by state or federal law to conduct a conviction history background check, or to any contract position with a criminal justice agency. Exception is also made for a person to the extent that he or she obtains workers from a hiring hall pursuant to a bona fide collective bargaining agreement (Ch. 880 (A. 1650), L. 2013, enacted September 30, 2014). Full text, State Employment Law Library ¶5-23,607.01. Summaries, State Employment Law Library ¶5-9000.
In other legislation, the state has amended its Health and Safety Code with respect to criminal records checks of applicants for employment in community care facilities, foster family homes or certified family homes, residential care facilities, and child day care facilities (Ch. 824 (A. 2632), L. 2013, enacted September 29, 2014). Full text, State Employment Law Library ¶5-23,601.11; ¶5-23,601.17; ¶5-23,601.21; and ¶5-23,601.31.
Additionally, the state Penal Code has been amended with respect to state summary criminal history information (Ch. 472 (A. 2404), L. 2013, enacted September 19, 2014; and Ch. 708 (A. 1585), L. 2013, enacted September 28, 2014). Full text, State Employment Law Library ¶5-23,604.01.
California Civil Rights
The Unruh Civil Rights Act has been amended to expand the relief authorized to be sought by an individual in a civil action to include appropriate equitable and declaratory relief to eliminate a pattern or practice of interference, or attempts to interfere.
Additionally, the law has been amended to prohibit waivers of the protections afforded by the law as a condition of entering into a contract for the provision of goods and services.
These amendments will take effect January 1, 2015 (Ch. 296 (A. 2634), L. 2013, enacted August 25, 2014; and Ch. 910 (A. 2617), L. 2013, enacted September 30, 2014). Full text, State Employment Law Library ¶5-20,026.10 and ¶5-20,026.11.
California Fair Employment Practices
Driver’s licenses. The state has enacted a law to prohibit employment discrimination against an individual who obtains a driver’s license under special provisions that allow for licensure despite an individual’s inability to submit satisfactory proof that his or her presence in the United States is authorized under federal law. Specifically, the California Fair Employment and Housing Act is amended to provide that national origin discrimination includes, but is not limited to, discrimination on the basis of possessing a driver’s license granted under the conditions described just above.
The state’s Vehicle Code is also amended to provide that an employer may not require a person to present a driver’s license unless possessing such a license is required by law or is required by the employer, and the employer’s requirement is otherwise permitted by law.
Additionally, driver’s license information obtained by an employer shall be treated as private and confidential, is exempt from disclosure under the California Public Records Act, and shall not be disclosed to any unauthorized person or used for any purpose other than to establish identity and authorization to drive (Ch. 452 (A. 1660), L. 2013, enacted September 19, 2014, and effective January 1, 2015). Full text, State Employment Law Library ¶5-20,025.26. Summaries, State Employment Law Library ¶5-2500).
Emergency personnel. Current California law prohibits an employer from discriminating against an employee for taking time off to perform emergency duty as a volunteer firefighter, reserve peace officer, or emergency rescue personnel.
Effective January 1, 2015, under a law signed by Governor Edmund G. Brown, Jr. on September 15, that law will expand the definition of emergency rescue personnel to include an officer, employee, or member of a disaster medical response entity sponsored or requested by the state. An employee who is a health care provider will be required to notify his or her employer at the time the employee becomes designated as emergency rescue personnel and also when he or she will be deployed as a result of that designation (Ch. 343 (A. 2536), L. 2013, enacted September 15, 2014). Full text, State Employment Law Library ¶5-20,031.01. Summaries, State Employment Law Library ¶5-2500.
Public assistance recipients. California Governor Edmund G. Brown, Jr. has signed a law prohibiting an employer from discharging or in any manner discriminating or retaliating against an employee who enrolls in a public assistance program. Additionally, an employer shall not refuse to hire a beneficiary for reason of being enrolled in a public assistance program.
The law, which will take effect January 1, 2015, and remain in effect only until January 1, 2020, also prohibits an employer from disclosing to any person or entity, unless otherwise permitted by state or federal law, that an employee receives or is applying for public benefits.
For purposes of these provisions, “public assistance program” means the Medi-Cal program. Under this program, which is administered by the State Department of Health Care Services, qualified low-income persons receive health care benefits (Ch. 889 (A. 1792), L. 2013, enacted September 30, 2014). Summaries, State Employment Law Library ¶5-2500.
California Security Breach Notification
Current California law requires a person or business conducting business in the state that owns or licenses computerized data that includes personal information to disclose a breach of the security of the system or data following discovery or notification of the breach to any California resident whose unencrypted personal information was, or is reasonably believed to have been, acquired by an unauthorized person. Likewise, a person or business that maintains computerized data that includes personal information that the person or business does not own must also notify the owner or licensee of the information of any breach immediately following discovery.
Effective January 1, 2015, the state will require with respect to the information to be included in a notification of a security breach described just above, that if the person or business was the source of the breach, appropriate identify theft prevention and mitigation services be provided for a specified time at no cost to the affected person (A. 1710, L. 2013, enacted September 30, 2014). Summaries, State Employment Law Library ¶5-9900.
California Social Security Number Privacy
The state’s law prohibiting a person or entity, with specified exceptions, from publicly posting, displaying or otherwise compromising the security of an individual’s social security number has been amended to prohibit the sale of, advertisement for sale of, or offer to sell an individual’s social security number (A. 1710, L. 2013, enacted September 30, 2014). Summaries, State Employment Law Library ¶5-9900.
California Veterans’ Preference
The state has enacted a law to include the veterans’ preference system among employment selection devices of the State Department of Human Resources (Ch. 645 (A. 1397), L. 2013, enacted September 27, 2014). Full text, State Employment Law Library ¶5-23,402.03.
Colorado Minimum Wage
The Colorado Department of Labor and Employment, Labor Standards, has scheduled a hearing on proposed Colorado Minimum Wage Order Number 31 (7 CCR 1103-1). If adopted, the Order would increase the state minimum wage from $8.00 to $8.23 per hour on January 1, 2015.
The state minimum wage for tipped employees would also increase from $4.98 to $5.21 per hour effective January 1, 2015. The new Order, which would replace current Minimum Wage Order No. 30, would also revise recordkeeping requirements and complaint procedures.
The hearings will be held on November 4, 2014, at 2:00 p.m., at the Colorado Division of Labor, 633 17th Street, Second Floor, Suite 200, Denver, Colorado, 80202. Comments on the proposed rulemaking must be submitted to the Division by the close of business on November 6, 2014 (State of Colorado Department of Regulatory Agencies (DORA), Notice of Proposed Rulemaking, September 30, 2014; Colorado Department of Labor and Employment, Proposed Rules, https://www.colorado.gov/pacific/cdle/proposed-rules).
Connecticut Credit Checks
The state has enacted a law amending the definition of “financial institution” for the purposes of employer inquiries about employee or prospective employee credit ratings. The following have been added as financial institutions: mortgage brokers, mortgage correspondent lenders, mortgage lenders licensed pursuant to existing law, and mortgage servicing companies (P.A. 14-109 (S. 221), L. 2014, effective October 1, 2014). Full text, State Employment Law Library ¶7-20,030.01.
Delaware Pregnancy Discrimination
As previously reported, on September 9, 2014, Delaware Governor Jack Markell signed legislation (S. 212) to address pregnancy accommodations in the workplace and to clarify that current prohibitions against sex discrimination in employment include pregnancy.
Senate Bill 212 amends state law to make it an unlawful employment practice for an employer with four or more employees to fail to hire or to discharge an individual or to otherwise discriminate against that person with respect to compensation, terms, conditions or privileges of employment because of pregnancy. Employers are also prohibited from limiting, segregating or classifying employees in any way so as to deprive them of employment opportunities or otherwise adversely affecting an individual’s status as an employee because of pregnancy.
The new law requires employers to provide notice of the right to be free from discrimination in relation to pregnancy, childbirth and related conditions, including the right to reasonable accommodation to known limitations related to pregnancy, childbirth and other related conditions. This notice must also be conspicuously posted at the employer’s place of business in an area accessible to employees (Ch. 429 (S. 212), L. 2013, enacted and effective September 9, 2014, http://www.legis.delaware.gov/LIS/lis147.nsf/EngrossmentsforLookup/SB+212/$file/Engross.html?open). Full text, State Employment Law Library ¶8-20,025.10; ¶8-20,025.11; and ¶8-20,025.16. Summaries, State Employment Law Library ¶8-2500.
Delaware Whistleblower Protection
Employees who report or are about to report to a public body or to their employer or the employer’s supervisor any noncompliance or infractions involving campaign contributions and expenditures that the employee believes has occurred or is about to occur are protected under the Delaware Whistleblowers’ Protection Act.
Employees are also protected from retaliation when participating in an investigation, hearing, trial or inquiry involving a person or entity other than the employee, or for refusing to participate or assist in such noncompliance or infraction involving campaign contributions and expenditures (Ch. 344 (H. 300), L. 2014). Full text, State Employment Law Library ¶8-62,003. Summaries, State Employment Law Library ¶8-3600.
District of Columbia Minimum Wage
The Minimum Wage Revision Act has been amended to include contractors and subcontractors as covered “employers,” and to hold both as jointly liable for violations under the Act.
In addition, the law has also been amended to require that employers provide itemized wage statements and written notice at time of hire covering certain wage and hour information, such as wage rates and payday.
Temporary staffing agencies will also be required to provide notice to employees, at the initial interview or hire, and later updated with more detailed information when a specific assignment is given.
The law has also been amended to enhance remedies, fines and administrative penalties for violations (Act 20-426 (B20-671), L. 2014, the “Wage Theft Prevention Amendment Act of 2014,” approved and signed by the Mayor on September 19, 2014). Full text, State Employment Law Library ¶9-41,002, ¶9-41,005, ¶9-41,008, ¶9-41,009, ¶9-41,009a,¶9-41,010, ¶9-41,011, ¶9-41,012, ¶9-41,012a, ¶9-41,013 and ¶9-41,013a. Summaries, State Employment Law Library ¶9-1000.
District of Columbia Paid Sick Leave
The Accrued Sick and Safe Leave Act of 2008 has been amended with respect to enforcement (Act 426 (B. 671), L. 2013, enacted September 19, 2014). Full text, State Employment Law Library ¶9-22,450.36; ¶9-22,450.38; and ¶9-22,450.42. Summaries, State Employment Law Library ¶9-7000.
District of Columbia Wage Payment