State legislatures were busy in 2019, passing a flurry of new employment laws that will take effect in 2020. This newsletter provides a high-level overview for some of the most important developments for the states where most of our clients operate. Please feel free to reach out to us with specific questions about any of these new laws or if you are concerned about a state that is not included in this newsletter.
New Laws Responding to #MeToo
The #MeToo movement continues to reshape the employment law landscape. There are two major trends in responding to #MeToo: (1) required sexual harassment training, and (2) limits on non-disclosure provisions in employment and separation agreements.
- Sexual Harassment Training Requirements
Several states have sexual harassment training requirements coming into effect (or already in effect). These states include:
- California: Employers with 50 or more employees are already required to provide two hours of training to supervisory employees. Starting in 2020, this requirement expands to include at least one hour of training to all non-supervisory employees and two hours of training for all supervisory employees for employers with five or more employees. Employers have until January 1, 2021 to complete the required training. Sexual harassment training must be repeated at least every two years. Employers also have new poster, notice, and policy distribution requirements.
- Connecticut: Employers must provide sexual harassment training to all employees before October 1, 2020. Employers with three or more employees must post a notice regarding sexual harassment.
- Illinois: Starting in 2020, all employees must receive sexual harassment training on an annual basis. Employers have until January 1, 2021 to complete the first annual training.
- New York: As of 2019, all employees must receive sexual harassment training on an annual basis. Employers must also provide annual notice of their policy, including copies of the training materials.
- Maine: Employers with 15 or more employees must provide all employees with an annual notice of their sexual harassment policy and train all employees on sexual harassment within one year of hire or promotion to a supervisory position.
Although Massachusetts does not currently require sexual harassment training, we strongly recommend that most employers implement sexual harassment training for all employees at least every two years.
- Limitations on Non-Disclosure in Employment Agreements
In cases involving sexual harassment or discrimination, several states now either ban non-disclosure provisions in separation or settlement agreements or require specific language for these provisions to be valid.
- Illinois: Employee settlement and separation agreements cannot include a non-disclosure provision concerning any alleged unlawful employment practices (including sexual harassment or discrimination) unless the agreement includes specific terms. These terms include a notice to the employee of their right to have an attorney review the agreement, additional consideration for the non-disclosure provisions, a clear statement that confidentiality is the employee’s preference and mutually beneficial to both parties, and no waiver of claims that occur after the execution of the agreement. Employees must be given 21 days to consider the agreement and 7 days to revoke the agreement after execution. Employment agreements cannot restrict an employee from reporting unlawful conduct to government officials or agencies.
- New York: Non-disclosure provisions regarding discrimination or harassment are generally prohibited unless the employee prefers to keep the agreement confidential. Employees must be given 21 days to consider the agreement and 7 days to revoke the agreement after execution. Non-disclosure provisions must explicitly state that employees are free to speak to law enforcement, state agencies, or their own attorney, and these provisions cannot prohibit the employee from participating or testifying in an investigation by a governmental agency.
- Oregon: Non-disclosure or non-disparagement provisions that prevent employees from discussing discrimination or harassment are prohibited entirely.
- California: Beginning last year, California barred employers from including provisions in settlement agreements that prohibited the disclosure of “factual information” if the case or complaint contained allegations related to sexual harassment, unless the employee requested it. California also banned “no rehire” provisions in employment settlement agreements, except where the employer has made a good-faith determination that the employee engaged in sexual harassment or assault.
Paid Leave Laws:
Paid leave continues to expand across the country in 2020. In addition to existing paid leave laws in Massachusetts, New York, Rhode Island, New Jersey, California, Washington, and many municipalities across the country, the following states are adopting new paid leave laws for 2020:
- Nevada: Employers with 50 or more employees in the state must provide 40 hours of paid leave per year to be used for any purpose, including non-medical purposes.
- Washington, DC: Employers must provide eight weeks of paid parental leave, six weeks of paid family medical leave to care for a family member with a serious illness, and two weeks of paid leave for an employee’s own serious health condition.
- Maine: Employers with 11+ employees must provide 40 hours of paid leave per calendar year, which can be used for any reason.
Salary History Bans
As a reminder, Massachusetts and California have already banned employers from asking job candidates for their salary history prior to making a job offer. Other states have their own salary history bans taking effect in 2020:
- Illinois: Employers cannot ask a job candidate for their salary history as a condition of being interviewed or receiving an offer. Employers can state the pay range for the position and ask a candidate for their compensation expectations.
- New York: Employers cannot ask job candidates, independent contractors, current employees, or their current/past employers for their salary or wage history.
- New Jersey: Employers cannot screen job applicants based on salary history, but they can use salary history in determining wages and other benefits if a job candidate voluntarily offers this information.
Minimum wage continues to go up in many states, including:
- California: $12.00
- Illinois: $9.25, increasing to $10.00 on July 1.
- Massachusetts: $12.75
- New Jersey: $11.00
- New York City: $15.00
- New York State (Long Island & Westchester): $13.00
- New York State (everywhere else): $11.80
Additional State-Specific Considerations
Finally, a few additional laws that affect our clients in various locations:
Massachusetts – PFML Becomes Available in 2021
Massachusetts workers cannot take paid family/medical leave until January 2021. Nevertheless, we recommend that our clients continue to prepare for PFML in 2020 by strengthening their performance management practices to ensure that any on-going performance problems are addressed and documented. This is necessary because the statute contains a presumption of retaliation if there is any adverse action against the employee within six months of the leave. In order to rebut the presumption, the employer must provide “clear and convincing evidence” that it had “sufficient independent justification” for taking the action and that the same action “would have [been] taken” “in the same manner” regardless of the leave.
Additionally, employers that have not already done so should explore private insurance plan options that would allow them to opt out of PFML, potentially saving money on PFML contributions.
California – Stricter Rules for Independent Contractor Status
In 2019, California passed a much stricter test for independent contractor status. Under the new law, to be properly classified as an independent contractor, a worker must be free from the hiring entity’s control and direction, must perform work outside the usual course of the hiring entity’s business, and engaged in an independently establish trade, occupation, or business. Companies should review their workforce and ensure that any independent contractors are properly classified under the new test.
New York City – Independent Contractors Protected from Discrimination
Independent contractors are now covered by the New York City Human Rights Law, which means that independent contractors are now protected from discrimination, harassment, and retaliation to the same extent as employees.
New York State- Reproductive Health Decisions
New York employers cannot discriminate or retaliate against employees based on their reproductive health decisions. The new statute requires employers to update their handbooks no later than January 7, 2020 to include reproductive health decisions among the protected classes. If you have not already done so, please contact us if you need an update to your New York employee handbook for 2020.
As always, please contact us if you have any questions regarding new laws that may impact your business or your employees.