State of the States: 2018 State and Local Policy Agendas Begin in Earnest

February 09, 2018

As reported by the most recent Littler Workplace Policy Institute's State of the States, Maine became the first jurisdiction to protect employees from actions based on marijuana use, as over 600 other state and local bills governing workplace issues were introduced or actively evaluated in January in an acceleration of policy trends involving equal pay, sexual harassment, and predictive scheduling. 

Equal Pay  At least 17 states introduced proposals aimed at narrowing the pay gap between male and female workers.  These bills take different approaches.  Roughly eight states are considering bills that would strengthen existing pay equity statutes.  Alternatively, six states (Hawaii, Illinois, Nebraska, Oklahoma, Tennessee, and Virginia) are weighing stand-alone wage transparency bills, which would make it illegal for employers to prohibit workers from discussing their wages with colleagues.  In Mississippi, however, several measures that would have created a new equal pay law have already died in committee.  Meanwhile, the trend toward banning salary history inquiries continues to spread.  Legislators in at least 11 jurisdictions, including Arizona and Rhode Island, have introduced salary history bills, which make it illegal for employers to ask applicants about their wage history during some portion (if not all) of the hiring process.  These types of laws remain popular, with salary history bans taking effect recently or later this year in California, Delaware, Massachusetts, New York City, and Puerto Rico.  HR Policy, in conjunction with the Workplace Policy Institute, recently issued a critique of the various new pay equity laws, which can be a useful guide for policymakers and business community lobbyists in considering new measures. 

Sexual Harassment, Nondisclosure, and Arbitration Issues  The last few weeks have seen a spate of bills that would curtail the use of non-disclosure agreements (NDAs) in the resolution of harassment claims.  Measures have been filed in Arizona, California, Florida, Indiana, New Jersey, New York, Pennsylvania, Vermont, Virginia, and Washington.  State lawmakers are also considering restrictions on the use of arbitration agreements, which often require employees to resolve employment disputes through arbitration rather than in court.  Bills on that topic are percolating in a handful of jurisdictions, including South Carolina, Vermont, New Jersey, Washington, and Virginia.  A few states are exploring mandatory training as a means of raising awareness and curbing sexual harassment. Virginia and Arizona, for example, are reviewing bills that would require employers to provide new hires with anti-harassment training.  Under a New York bill, the state Department of Labor would create harassment prevention materials for employer use, including training protocols and model policies. 

Discrimination: Protected Classifications  At least a dozen states are contemplating bills that would expand coverage under their current antidiscrimination laws.  Most of these proposals (as seen in Arizona, Indiana, and Florida) would prohibit discrimination on the basis of sexual orientation, gender identity, and/or gender expression.  Additionally, veteran status would be explicitly protected under four proposals.  Bills in Hawaii and Missouri would prohibit employers in those states from discriminating against workers based on their reproductive health decisions.

Drug Usage and Testing  As of February 1, 2018, Maine is the first jurisdiction in the nation to protect workers from adverse employment action based on their use of marijuana and marijuana products—as long as the use occurs away from the workplace.  Employers still may prohibit the use and possession of marijuana products at work and may discipline employees who attend work under the influence of marijuana.

Predictive Scheduling  Six states saw predictive scheduling measures introduced, including Arizona, Hawaii, New Hampshire, New Jersey, Virginia, and Wisconsin.  Generally speaking, these laws require employers to provide advance notice (often up to 14 days) to certain types of employees (hourly, retail, etc.) of their schedules and to provide additional compensation if the employer initiates a change to that schedule.  Meanwhile, New York City has already seen changes to its predictive scheduling regulation, which took effect in November 2017.  Effective July 18, 2018, a bill enacted by the City Council (Int. 1399-2016) authorizes covered employees to take two temporary schedule changes each year for “personal events.”  Employers must accommodate schedule changes, for example, for an employee to tend to a caregiving emergency, certain legal proceedings, or any event that would qualify for the use of leave time under the city’s sick or safe time act.

Preemption  Various bills were introduced that would preempt local governments from enacting their own employment-related ordinances.  These include measures in Wisconsin, Arizona, New Jersey, and Oklahoma.  Missouri, on the other hand, is considering a proposal to roll back preemption provisions that currently prevent municipalities from establishing a minimum wage higher than the state level or other employment benefits, such as sick leave or vacation time.