In the coming year, there are many new laws across the country that will affect employers’ compliance obligations. Employers must take note of new laws that create compliance obligations in the states where they operate. Many of these new laws are set to take effect January 1, but some take effect at other points throughout the year. While there are trends within the new laws, many of the new laws are state-specific. This article will explain the new laws and the obligations that they create for employers.
There are three major trends employers should take note of: (1) Additional Paid Leave, (2) Pay Scale Transparency, and (3) Rising Minimum Wages. Each state may have its own version of laws on each of these topics. Below we have listed several new state requirements taking effect in 2023. This list is not exhaustive; additional state and federal requirements may also come into effect in the new year.
After the COVID-19 pandemic, states across the country have taken note of paid leave’s importance and many states have expanded their employer paid leave requirements, as listed below.
California passed legislation that allows employees to take leave to care for “designated persons,” which is defined as any individual related by blood or whose association with the employee is the equivalent of a family relationship. The employee can designate the person at the time of taking leave. Employers should review their sick leave policies to ensure this new definition of “designated persons” is referenced.
California also gave employees additional bereavement leave. A new law requires private employers with five or more employees to provide eligible employees with up to five days of bereavement leave within three months of the death of the employee’s spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law. It is important to note that this leave does not need to be taken consecutively.
Colorado, passed legislation that provides for up to 12 weeks of paid family and medical leave, with an additional four weeks for pregnancy or childbirth complications. This leave is not available to employees until 2024, but premiums for the leave program are due starting in 2023.
A new Illinois law amends the Employee Sick Leave Act to provide that the rights afforded under the act serve as the minimum standard in a negotiated collective bargaining agreement. The Employee Sick Leave Act requires employers to allow workers to use sick time for absences due to an illness, injury, or medical appointment of an employee’s family member. This new legislation clarifies the Employee Sick Leave Act.
Illinois also amended the Illinois Child Bereavement Leave Act, which gave employees additional unpaid leave for absences resulting from a pregnancy loss, unsuccessful IVF treatment, a failed adoption or surrogacy, or a diagnosis that impacts pregnancy.
New York, passed legislation expanding employee paid leave coverage to include taking leave to care for siblings. This includes biological siblings, adopted siblings, step-siblings and half siblings. Under the previous law, employees could not take paid leave to care for a sibling with a serious health condition.
Oregon, passed laws that made two significant changes to the paid leave available to employees. First, the new laws remove the provision that exempts certain employees who are covered under collective bargaining agreements from sick leave requirements. Second, legislators passed an initiative that expands the definition of “benefit year” for the purposes of paid family and medical leave insurance program.
Amid growing concern over pay equity, several states have passed legislation to provide job candidates with pay transparency. These new laws require employers to disclose the amount that the job pays, the amount a potential employee can make after promotions, and provides for a private right of legal action against employers who do not comply with the requirements.
California passed a new pay scale law that requires employers with 15 or more employees to make pay scale information available to potential employees upon request. This law also requires employers of 100 or more employees to submit annual pay reports to the California Civil Rights Department.
Illinois passed a similar initiative requiring employers that file EEO-1 reports to submit similar reports to the state of Illinois. This requirement also includes new pay data reporting and certification requirements, among other obligations. While this law took effect in 2021, there are new obligations that take effect in 2023.
Several local governments in New York State also added new pay scale disclosure requirements. In New York City and Westchester County, employers must provide a potential employee with the pay scale for a given position. Employees can bring an action in court to enforce these new measures.
Rhode Island enacted a new law that prohibits pay discrimination and requires employers to disclose the pay scale for a given position. This new law also prohibits employers from basing the salary that they offer a potential employee on the potential employee’s previous salary information. The primary purpose of this law is to crack down on pay discrimination.
Washington has also passed a law that requires the disclosure of hourly or salary pay information and a general description of benefits to potential employees.
There are 17 states (including Washington, DC) where the minimum wage is set to go up in 2023 or sometime after 2023. Those states include Alaska, Arizona, California, Colorado, District of Columbia, Florida, Maine, Minnesota, Missouri, Montana, Nevada, New Jersey, New York, Ohio, Oregon, South Dakota, and Washington. The current federal minimum wage is $7.25, and only 16 states and Puerto Rico follow that minimum wage. Employers must ensure that they are following the minimum wage laws in each of the states in which they operate.
Beyond the three trends mentioned above, there are other new laws that will impact employers, which we list below.
Alabama made one change to its employment laws. The new law sets guidelines on how and where an employee can keep a firearm in their car while they work. Employers in Alabama should be sure to review the restrictions and speak to their employees to understand to whom this may apply.
Alaska passed a law that gives veterans’ spouses and dependent children preference in hiring. This law also includes surviving spouses of deceased service members. Employers should ask job applicants not only whether they are a veteran, but also whether they are a spouse or dependent child of a veteran.
California passed several changes to the state’s employment laws. These changes include off-duty cannabis use, unsafe working environments, and contraceptive access.
To begin, California has prohibited employers from discriminating against employees who use cannabis outside of the workplace. This new law, effective January 1, 2024, prohibits discrimination based on an employer-required drug screening test that detects nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.
California has also passed Senate Bill 1044, which implements protections for employees who refuse to report to, or who leave, a workplace or work site because the employee has a reasonable belief that the workplace or work site is unsafe. Employers must also allow their employees to access their mobile devices when they feel unsafe in the workplace. However these new protections do not cover a pandemic.
Finally, California provided workers with a right to information regarding contraceptive access. These laws apply to religious employers health care service plans and insurers that do not provide employees with contraceptive access and to employers who do not provide insurance that covers contraceptive access. These plans and insurers will be required to provide employees with written information about free services available through the California Reproductive Health Equity Program.
Colorado passed an initiative that protects workers from wage theft. The new initiative amends Colorado’s wage theft laws to increase penalties for employers that do not timely pay wages, allows employees to demand wages on behalf of a class of similarly situated employees, permits the Colorado Department of Labor and Employment’s Division of Labor Standards and Statistics to investigate such demands on a class-wide basis, and limits employers’ ability to recover attorney’s fees for successfully defending a claim.
Washington, DC made two changes to its employment laws. First, the DC City Council passed an initiative that requires covered employers of tipped employees to submit a copy of their sexual harassment policy and a certified report of sexual harassment claims for calendar years 2020 and 2021 by December 31, 2022. Second, a new law states that employers can no longer test job applicants and current employees for marijuana under certain conditions.
In Florida, the City of Miami Beach passed a new ordinance that prohibits employers from discriminating against employees on the basis of their hairstyle. The law seeks to prevent employers from discriminating against hairstyles that are commonly associated with race and national origin. Employers should update their anti-discrimination guidelines to accommodate this change.
Illinois added hairstyles as a protected characteristic . Current law prohibits employers from engaging in discrimination based on numerous protected characteristics, including race. This amendment expands the definition of “race” to include traits associated with race, including but not limited to hair texture and protective hairstyles such as braids, locks, and twists.
Maine passed a new law that will allow employees to cash out on their unused paid vacation time. According to the new law “[a]ll unused paid vacation accrued pursuant to the employer’s vacation policy on and after January 1, 2023 must be paid to the employee on cessation of employment.” The amendment also requires that private employers with 11 or more employees must pay all unused vacation to a separated employee at the cessation of employment regardless of the employer’s policy; payment must be made in full no later than the employee’s next established payday.
Oregon made three changes to its employment laws. First, a new anti-retaliation law expands the scope of retaliation provisions under the workers’ compensation statute and amends definitions of “beneficiary,” “child,” and “dependent.” This law allows the beneficiaries to receive more from a retaliation benefit.
Second, Oregon created new guidelines for suspending disability benefits. These new guidelines require that an employer notify someone receiving disability benefits before suspending the benefits. The employer must also provide the beneficiary of the benefits with a written explanation about why the employer is suspending the benefits.
Finally, a new law clarifies provisions that prohibit employers from entering into nondisclosure agreements that include, but are not limited to, discrimination, sexual assault, or workplace harassment.
A recent Philadelphia Ordinance created a new transportation benefit for certain employees. Employers with 50 or more employees must provide their employees with a mass transit and bike commuter benefit program. Importantly, the employer must provide the employee with both a mass transit and bike commuter program.
While this article outlines several new compliance obligations in the coming year, this list may not include all changes.
With so many constant changes and regulations to state and federal laws, it can be difficult to navigate and understand exactly what policies your employee handbook should include. Clear Law's Employee Handbook Service takes the guesswork out of managing constant and confusing updates to laws and regulations to ensure your handbook stays current and compliant. Our Compliance Advisory Team has years of employment law experience and is available to consult with you to make sure your employee handbook and HR policies are up-to-date with these new laws and all other required workplace policies in all the states where you have employees.
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