Over the past 12 months, states and local jurisdictions enacted dozens of laws that affect the way employers hire, pay, treat, and provide benefits to their employees. And with additional regulations on the horizon, we identify five legislative trends to watch in 2019.
#1: Sexual Harassment Prevention
In the wake of the #MeToo movement, many jurisdictions have made changes to their sexual harassment laws. In 2018, several laws were passed that significantly impact sexual harassment policy and training requirements.
- California expanded its existing training requirement to cover employers with five or more employees (previously only employers with 50 or more employees were required to provide sexual harassment training) and to require both supervisor and employee training. The state already required a written sexual harassment policy.
- Delaware now requires employers with 50 or more employees in the state to provide sexual harassment training.
- The District of Columbia will require employers of tipped employees to provide sexual harassment training and adopt a written sexual harassment policy.
- New York requires employers to adopt a sexual harassment policy (effective October 9, 2018) and training program that meets certain requirements. All employees must complete the training by October 9, 2019 and annually thereafter.
- New York City has enacted its own training requirement for employers with 15 or more employees, effective April 1, 2019. Covered NYC employers will need to ensure compliance with both the state and city law. For example, New York City requires that the training include information concerning bystander intervention and may require training of independent contractors in certain situations.
Additionally, some states enacted laws prohibiting mandatory nondisclosure agreements regarding sexual harassment.
Note: There are other states that already required training and/or a policy. For example, Connecticut (employers with 50 or more employees) and Maine (employers with 15 or more employees) require sexual harassment training. Additionally, all Maine employers must provide a written notice (similar to a policy) to employees on an annual basis. Massachusetts (employers with 6 or more employees), Rhode Island (employers with 50 or more employees), and Vermont (all employers) require employers to adopt a written policy.
#2: Paid Family and Paid Sick Leave Laws
Paid family leave generally provides partial wage-replacement benefits to workers for covered absences. Coverage varies among jurisdictions but generally includes bonding with a newborn, or a newly placed adopted or foster child, or caring for a family member with a serious health condition. The programs in the District of Columbia, Massachusetts, New York, and Washington state cover additional circumstances. The jurisdictions with a paid family leave program are outlined here:
- District of Columbia (tax begins July 1, 2019, but benefits begin in July 2020)
- New Jersey
- New York
- Rhode Island (referred to as Temporary Caregiver Insurance)
- Washington (premium collection began January 1, 2019, but benefits begin in January 2020)
In 2018, these laws became increasingly generous to employees, such as offering benefits for a longer period of time and/or covering additional reasons for leave.
Eleven states, the District of Columbia, and more than 20 local jurisdictions require employers to provide paid sick leave to eligible employees. The states with paid sick leave requirements include:
- Connecticut (employers with more than 50 employees must provide paid sick leave to "service employees")
- Michigan (effective March 29, 2019, employers with 50 or more employees must provide "paid medical leave")
- New Jersey (state law preempted local paid sick leave laws)
- Rhode Island
Local jurisdictions with paid sick leave requirements include:
- Austin, Texas: (temporarily blocked)
- San Antonio, Texas (effective August 1, 2019 for employers with more than five employees, but August 1, 2021 for smaller employers)
- Cook County, Illinois
- District of Columbia
- Cities in California: Berkeley, Emeryville, Oakland, San Francisco, Santa Monica, San Diego, Long Beach (hotels with 100 or more rooms), and Los Angeles
- Cities in Washington: Seattle, Tacoma, and SeaTac (hospitality and transportation industries)
- Cities in Minnesota: Duluth (effective January 1, 2020), Minneapolis and St. Paul
- Montgomery County, Maryland
- New York City
- Westchester County, New York (effective April 10, 2019)
There have also been various proposals to amend federal law to require employers to provide paid family leave and/or paid sick leave, but these proposals haven't received a vote yet. This could be different in 2019 because control of the U.S. House of Representatives has changed hands.
#3: New Overtime Rules
In 2019, employers will likely see changes to the rules governing who is exempt from overtime under federal law and under some state laws.
In May 2016, the Department of Labor (DOL) released a final rule that would have increased the minimum salary required to be exempt from overtime under the Fair Labor Standards Act (FLSA). However, a federal judge blocked the DOL from implementing the rule. The DOL filed an appeal of the decision, but that appeal is being held while the DOL undertakes new rulemaking.
New Proposed Rule Expected in 2019:
A new proposed rule could come as early as March 2019. Under the new proposed rule, the salary required for exemption from overtime is likely to increase but not as high as in the blocked rule. Other changes are also possible.
Meanwhile, Pennsylvania is in the process of changing its rules governing who is exempt from overtime. A proposed rule was published in June 2018. If implemented, it would change the state's minimum salary and duties tests for the state exemptions from overtime.
In October 2018, Washington released a "pre-draft" proposed rule that would change the state's minimum salary and duties tests and sought the public's comments. The next step would be a proposed rule.
Other states are likely to consider changes to their own rules in 2019, either through regulation or legislation.
#4: Minimum Wage Increases
Twenty states and many local jurisdictions have new minimum wages that became effective on December 31, 2018 or January 1, 2019. Some additional jurisdictions will see increases at other times in 2019. Additionally, most jurisdictions require employers to post a minimum wage notice in the workplace. If you're required to post a notice, make sure it's the most up-to-date version.
In some states, the minimum salary requirement for exemption from overtime increases automatically whenever the minimum wage increases. This impacted employers in Alaska, California, Colorado, and Maine on January 1, 2019 and in New York on December 31, 2018. For example, both California and Alaska require employers to pay a salary of at least twice the minimum wage to bona fide administrative, professional, and executive employees.
#5: Medical and Recreational Marijuana Laws
In November, Missouri and Utah became the latest of 33 states and the District of Columbia to permit medical marijuana. Additionally, ten states and the District of Columbia permit the use of recreational marijuana, with Michigan joining the list this past November.
These laws don't require employers to allow employees to use, possess, or be impaired by medical or recreational marijuana during work hours or in the workplace. However, some states have employment protections for employees who use medical marijuana outside of work. In addition, some states may consider allowing off-duty medical marijuana use as a reasonable accommodation for a disability. This continues to be an evolving area of employment law, with court cases regularly testing the scope of protections for applicants and employees. Check your state law and work closely with legal counsel to determine your rights and responsibilities.
In the year ahead, we expect to continue to see trends aimed at bolstering anti-harassment efforts, granting employees paid leave, changes to overtime exemption rules, increases to the minimum wage, and medical and recreational marijuana laws. Regularly review workplace forms, policies, and practices to ensure compliance with your current applicable requirements.