Get documents about "State labor legislation enacted in 2007
Document Sample
State Labor Laws, 2007
State labor legislation
enacted in 2007
Laws concerning the minimum wage, prevailing wages,
equal employment opportunity, wages paid, time off,
drug and alcohol testing, child labor, and worker privacy
were among the most active areas with new or amended
legislation enacted during the year
T
John J. Fitzpatrick, Jr., he Wage and Hour Division of the of an issue, or (4) deal with funding mat-
and U.S. Department of Labor is respon- ters related to an issue. Also not covered are
James L. Perine
sible for tracking various categories areas of labor legislation that concentrate
of labor legislation and reporting on any on issues relating to occupational safety and
amendments or new laws falling under those health, employment and training, labor rela-
categories and enacted by States. More than tions, employee background checks (except
30 categories are tracked during this yearly for those dealing with potential national
process. Among the categories tracked are security issues), economic security, and lo-
agriculture, child labor, State departments of cal-area living wage ordinances.
labor, the discharge of employees, drug and A larger volume of State labor legislation
alcohol testing, equal employment opportu- was enacted during 2007 than during the
nity, employment agencies, employer leasing, previous year. The increase was due in part
family issues, genetic testing, handicapped to the fact that, unlike the situation in 2006,
workers, hours worked, human trafficking, all 50 State legislatures and the District of
immigrant protections, inmate labor, living Columbia met in regularly scheduled ses-
wages, the minimum wage, offsite work, sions in 2007. The labor legislation that was
overtime, plant closings, prevailing wages, enacted or amended by the States and the
the right to work, time off, unfair labor prac- District last year addressed a variety of is-
tices, wages paid, whistleblower protections, sues in 26 employment standards areas and
John J. Fitzpatrick, Jr., is the
State Standards Team leader
worker privacy, and workplace security. Not included many important measures.
in the Office of Performance, every piece of enacted legislation that comes Most State legislation in 2007 occurred in
Budget, and Departmental
Liaison, Wage and Hour within the purview of one of these catego- eight categories: child labor, drug and alcohol
Division, Employment ries is addressed in this article. Among the testing, equal employment opportunity, the
Standards Administration,
U.S. Department of Labor; laws that are not addressed are those which minimum wage, prevailing wages, time off,
James L. Perine is a compli-
ance specialist on the State (1) amend existing State law, but are strictly wages paid, and worker privacy. Forty-six of
Standards Team in the same technical in nature, (2) affect only a limited the 50 States and Puerto Rico enacted labor
Office. E-mail: fitzpatrickjr.
john@dol.gov or perine. number of individuals, (3) require the initia- legislation of consequence in one or more of
james@dol.gov tion, completion, or distribution of a study the 30 categories tracked. The legislatures of
Monthly Labor Review • January 2008
State Labor Laws, 2007
Illinois, Hawaii, Maine, New York, North Carolina, Ore- 16-year-old minors in some occupations and now requires
gon, Texas, and Virginia enacted above-average numbers of an adult to be present on the jobsite if a minor is employed
labor-related pieces of legislation in the categories tracked. after 8:00 p.m. New Hampshire employers may employ 16-
At the time this article was sent off for publication, only and 17-year-old youths who are still in school, as long as
Arkansas, Mississippi, Pennsylvania, South Carolina, and the employer maintains a file copy of a signed written docu-
the District of Columbia had not enacted labor legislation ment from a parent or guardian of the child in question that
within any of the 30 categories tracked. permits the youth’s employment. The requirements for work
For the second year in a row, minimum-wage legisla- permits for minors in various occupations and the hours of
tion was the “hot-button” issue. The substantial level of work permitted for performers less than 18 years of age in
activity in State minimum-wage legislation was due in New Mexico were modified. The child labor code does not
part to an increase in the Federal minimum wage. Effec- now apply to minors in Texas who are engaged in the direct
tive July 24, 2007, the Federal minimum wage for covered sale of newspapers to the general public. Virginia increased
nonexempt employees was raised to $5.85 per hour. The the fines assessed against employers who incur the death of
minimum wage increases to $6.55 per hour effective July a child in their employ. In addition, minors under 18 years of
24, 2008, and $7.25 per hour effective July 24, 2009. The age may not be employed in any capacity in the manufactur-
Federal increase resulted in increases in a number of State ing of paint or of goods with alcoholic content. Minors in
minimum-wage rates, because several States previously the State of Washington who are under 14 years of age may
had enacted legislation that required them to maintain not work without the written permission of a judge of the
a minimum wage at least equal to, or even greater than, superior court of the county wherein the child resides.
the Federal minimum wage. More than 40 States now
have such minimum-wage requirements. A few States Drug and alcohol testing. Drivers in Arkansas who are cov-
have minimum-wage rates that are less than the Federal ered by the Federal Motor Carrier Safety Act must submit
minimum wage. Finally, 5 States—Alabama, Louisiana, to drug and alcohol testing, and the appropriate database
Mississippi, South Carolina, and Tennessee—have not must be checked by employers to determine applicants’ eli-
yet established a minimum-wage requirement, although gibility for employment. Florida licensees of slot machine
Tennessee does enforce a promised-wage law.1 gaming must implement drug and alcohol programs for
The remainder of this article comprises two sections. employees. Hawaii employers whose employees test posi-
The first provides a brief overview of several of the most tive in an onsite screening test must have their employees
active legislative categories tracked and discusses some, report to a licensed laboratory within 4 hours of having
but not nearly all, of the pieces of legislation that resulted completed the test. Employers in Maine may no longer
in laws which were amended or enacted by the individual require, request, or suggest that an employee or applicant
State legislatures during 2007. The second section consists sign consent forms absolving employers from, among
of a more comprehensive description of each State’s labor- other things, potential liabilities due to the imposition
related legislative activities, again subdivided by legislative of substance abuse testing. In North Carolina, operators
category, that resulted in laws amended or enacted by the who have commercial driver’s licenses and who have tested
individual State legislatures during the course of the past positive in a substance abuse test must be disqualified from
year. operating a commercial motor vehicle until the employer
obtains a receipt of proof of successful completion by the
Child labor. California extended the expiration date of an employee of assessment and treatment. Motor carriers for
exemption for 16- and 17-year-old minors employed in one hire in Tennessee who provide passenger transportation
particular county to work up to 60 hours per week during in vehicles designed to transport eight or more passengers
peak harvest season when school is not is session. Illinois must conduct a mandatory drug-testing program.
amended the State hazardous orders so that they now pro-
hibit persons under the age of 16 from working in occupa- Equal employment opportunity. Colorado added the two
tions handling human blood, body fluids, or body tissues. categories of religion and sexual orientation to its list of
Massachusetts amended the hours of work permitted for grounds upon which employers may not discriminate.
Monthly Labor Review • January 2008
Now employers may not refuse to hire, discharge, pro- the coverage portion of the State minimum-wage law by
mote or demote, harass during the course of employment, extending coverage to (1) individuals employed in domes-
or discriminate in matters of compensation against any tic service in or about a private home and engaged directly
otherwise qualified person on the basis of his or her reli- by the resident or owner of the home or (2) individuals in
gion or sexual orientation. In Illinois, it is now considered the family or residence of the homeowner. Montana now
a civil rights violation for a public employer to refuse to requires the State minimum wage to exclude the value of
temporarily transfer a pregnant peace office or firefighter tips received by an employee. In addition, the minimum-
to a less strenuous or hazardous position for the duration wage requirement in Montana will now be subject to an
of the pregnancy if so requested by the employee under annual cost-of-living adjustment. Among other changes
the advice of a physician and if the request can be reason- in the Nevada minimum-wage law, tips or gratuities re-
ably accommodated. In addition, the State Civil Rights ceived by employees shall neither be credited as being any
Act now includes gender among those characteristics that part of, nor be offset against, the wage rates required by
cannot be used by any unit of State, county, or local gov- the State law. The New Hampshire minimum wage was
ernment to exclude a person from participation in, deny a increased to $6.50 per hour, with an additional increase
person any benefits from, or subject a person to discrimi- scheduled for September 2008. The minimum wage in
nation under any program or activity. Iowa added sexual New Mexico increased to $6.50 per hour on January 1,
orientation and gender identity to the group of factors 2008, and will be increased further to $7.25 per hour on
that are prohibited from being used by persons to dis- January 1, 2009. In addition, New Mexico enacted legisla-
criminate in the area of employment activities. North Da- tion that prohibits any city, town, county, home rule mu-
kota amended the definition of “discriminatory practice” nicipality, or other political subdivision from adopting or
in the State Century Code. Oregon amended its State continuing in effect any law or ordinance that mandates
laws so that they now encourage the fullest utilization a minimum wage higher than that set forth in the State
of the available workforce. The State removed arbitrary Minimum Wage Act. The New Mexico legislation is ef-
standards of race, sexual orientation, disability, and marital fective for a period of 2 years from January 1, 2008. The
status that were acting as a barrier to employment. North Dakota and South Dakota minimum-wage rates
were increased to $5.85 per hour, the same as the newly
Minimum wage. Nearly 190 pieces of legislation pertain- increased Federal minimum wage, and will match the next
ing to the minimum wage were introduced in 46 States. two Federal minimum-wage rate increases set for 2008
Changes in the State minimum wage laws were brought and 2009. Vermont employers in the hotel, motel, tourist
about either on account of newly enacted or amended place, and restaurant industry must pay a service or tipped
legislation that occurred during the year, because changes employee at a basic hourly wage of not less than $3.65
were required as a result of legislation which had been en- per hour, and this basic rate shall be increased at the same
acted in previous years and that called for specific actions percentage as the minimum-wage rate. The definition of
to occur in subsequent years, or because of ballot issues a service or tipped employee in the State was redefined to
that had been approved by public vote. mean an employee in any of the aforesaid industries who
Arizona statutes regarding employer liability for non- customarily and regularly receives more than $120 per
payment of the minimum wage were amended, while Ar- month in tips for direct and personal services performed.
kansas amended the minimum-wage allowance for gratu- Virginia redefined the definition of an employee to clarify
ities and also refined the definition of an employee. Idaho who is excluded from being considered an employee.
now requires that the State minimum wage conform to
and track with the Federal minimum wage. The Illinois Prevailing wage. Hawaii revised the definition of a pub-
minimum wage was increased to $7.50 per hour, with ad- lic work to include work performed under a construction
ditional increases scheduled for July 1, 2008, 2009, and contract between private persons if more than 50 percent
2010. Employers in Indiana who employ two or more em- of the assignable square feet of a project is leased or as-
ployees during a workweek shall pay the employees wages signed for use by the State, any county in the State, or any
not less than the Federal minimum wage. Iowa increased agency of the State or any county, whether or not the prop-
the State minimum wage to $6.20 per hour in April, while erty is privately owned. The Illinois Prevailing Wage Act
Kentucky increased its State minimum wage to $5.85 per was amended to clarify the fact that the Act applies to the
hour in June 2007, to be followed by increases to $6.55 per wages of laborers, mechanics, and other workers employed
hour in July 2008 and $7.25 in July 2009. Maine amended in any public works, by any public body, and to anyone un-
Monthly Labor Review • January 2008
State Labor Laws, 2007
der contract for public works. In Illinois, no employee may family leave time. Employees in Illinois who are subject to
use, possess, distribute, deliver, or be under the influence of the Employee Blood Donation Leave Act may be entitled
a drug or alcohol while performing work on a public works to blood donation leave with pay. Employees in Montana
project. Before employers in the State begin work on public who terminate their employment for a reason not reflect-
works projects, they must have in place a written program ing discredit upon them are entitled, upon the date of ter-
that meets or exceeds State requirements and that must mination, to cash compensation for unused vacation leave,
be filed with the public body engaged in the public works assuming that they have worked the qualifying length of
and made available to the general public for the prevention time. Nebraska employers who employ between 15 and
of substance abuse among their employees. Legislation in 50 employees are required to provide up to 15 days of un-
New Jersey has strengthened the prohibition against any paid family military leave to an employee during the time
contractor or subcontractor who has been debarred from Federal or State deployment orders are in effect. Employ-
public work due to violations of the prevailing-wage law ers who have more than 50 employees shall provide 30
from using a firm, corporation, or partnership in which days of leave. Employees in Nevada who are summoned
the contractor has an interest. Construction employers in for jury duty may not be required by their employers to
New Jersey, and their representatives who fail to properly use sick leave or vacation time for their jury service. Em-
classify an individual as an employee for purposes of the ployers in New York must grant a leave of absence of 3
State Prevailing Wage Act and other State statutes, who hours in any 12-month period to an employee who seeks
fail to pay wages, benefits, taxes, or other contributions re- to donate blood. In Vermont, duly qualified members of
quired by those acts shall be guilty of a disorderly person’s the “Reserve components of the Armed Forces,” of the
offense and shall, upon conviction, be fined not less than Ready Reserve, or of an organized unit of the National
$100 or more than $1,000, or be imprisoned for not less Guard shall, upon request, be entitled to leaves of absence
than 10 days or more than 90 days, or both. Each week, for a total of 15 days in any calendar year for the purpose
any day of which employees are misclassified, constitutes of engaging in military drill, training, or other temporary
a separate offense. The size of the contract may affect the duty under military authority. Virginia employers shall al-
size of the fine and the length of imprisonment. Texas no low any employee who is a victim of a crime to leave work
longer requires that the prevailing-wage rate determined to be present at all criminal proceedings relating to the
by a survey conducted by the U.S. Department of Labor crime against the employee.
be no more than 3 years of age. Wyoming increased the
State prevailing-wage threshold to encompass $100,000 Wages paid. If an employer in Colorado disputes the
contracts for the entire State, with the exception of any amount of wages or compensation claimed by an employ-
area defined as a metropolitan statistical area as delineated ee who has been terminated under the State Revised Stat-
under specific U.S. codes. utes, and if, within 14 days after the employee’s demand,
the employer makes a legal tender of the amount that
Time off. Arizona employers who have 50 or more em- the employer, in good faith, believes is due, the employer
ployees for each working day in each of 20 or more cal- shall not be liable for any penalty, unless, in a legal action,
endar weeks in the current or preceding calendar year are the employee recovers a greater amount than the amount
required to allow an employee who is a victim of a crime tendered. Employees in Illinois may file a complaint with
to leave work in order to obtain or attempt to obtain an the State Department of Labor alleging violations of the
order of protection, an injunction against harassment, or State Wage Payment and Collection Act within 1 year
any other injunctive relief to help ensure the health, safety, after the wages, final compensation, or wage supplements
or welfare of the victim or the victim’s child. California were due. Iowa employers who fail to send an employee’s
enacted legislation that requires qualified employers to al- wages for direct deposit on or by the regular payday are
low a qualified employee who is the spouse of a qualified liable for the amount of any overdraft charges if the over-
member of the Armed Forces of the United States, the draft is created on the employee’s account because of the
National Guard, or the Reserves to take up to 10 days employer’s failure to send the wages by the regular pay-
of unpaid leave while the qualified member is home on day. Kansas employers are now permitted to designate the
leave. In an amendment, Hawaii State law now stipulates method of payment by which employees receive wages,
that the employee is the only one entitled to make a deci- provided that all wages are paid by one of four specific
sion to take family leave as unpaid leave or to substitute methods. Nebraska amended its State Wage Payment and
the unpaid leave with accrued vacation, personal, or paid Collection Act so that whenever an employer separates an
Monthly Labor Review • January 2008
employee from the payroll, the unpaid wages constituting the categories of public records that may not be disclosed
commissions shall become due on the next regular payday by a public agency unless access to the records is specifi-
following the employer’s receipt of payment for the goods cally required by a State or Federal statute or is ordered by
or services from the customer who generated the com- a court under the rules of discovery. Except when data are
mission. New Hampshire expanded the list of reasons for to be released to certain Federal, State, and local govern-
which employers are authorized to withhold wages. In ad- ment entities, Nebraska employers shall not publicly post
dition, employers in the State are now authorized to pay or display, in any manner, more than the last four digits of
employees via payroll card. It is now an unlawful practice an employee’s Social Security number, or otherwise make
for a temporary help service firm in New Jersey to will- more than the last four digits available to the general pub-
fully withhold or divert wages for any purpose not expressly lic or to an employee’s coworkers. Nevada amended the
permitted by statute. Deductions from employees’ wages exemptions from State law that authorize the release of
by an employer in Oregon, as required and authorized by the home address of a peace officer by a law enforcement
law or agreement, shall be paid to the appropriate recipi- agency. New York employers shall make reasonable efforts
ents within the time required by the law or agreement. If to provide a room or other location, in close proximity
such a time requirement is not specified, payment must be to the work area, where an employee can express milk in
made within 7 days after the date the wages from which privacy. Confidential employment information secured
the deductions are made are due. If a business relationship by the Oregon Employment Department may be pro-
between an employer in Utah and a sales representative ter- vided to the State Department of Transportation to assist
minates, the employer shall pay the sales representative all that department in carrying out its duties relating to the
commissions due within 30 days after the day on which the collection of delinquent and liquidated debts, including
termination is effective, and within 14 days after the day on taxes, due under the State Revised Statutes and the State
which a commission becomes due if said commission is due Vehicle Code. In Tennessee, the residential address, as
after the day on which the termination is effective. well as the personal telephone and cell phone numbers, of
any State, county, municipal, or other public law enforce-
Worker privacy. Arizona added the position of code en- ment officer shall now be treated as confidential and not
forcement officer to the list of public employees, and oth- open for inspection by members of the public. It is now
ers, who may request that the general public be prohibited unlawful in Virginia for any person to publish the name
from accessing the unique identifier and the recording date or photograph of a law enforcement officer, along with
contained in indexes of recorded instruments maintained identifying information, with the intent to utilize that in-
by the county recorder. Florida statutes were amended formation to coerce, intimidate, or harass the officer. It is
to exempt certain personal identifying information from now unlawful in Washington State for any person, firm,
the public records requirements. Now exempt is personal or corporation to require, either directly or indirectly, that
identifying information that is contained in records docu- any employee or prospective employee take or be subject
menting an act of domestic violence and that is submitted to any lie detector or similar tests as a condition of either
to an agency by an agency employee. Indiana expanded employment or continued employment.
Alabama equal to the full actuarial determined cost for ginning January 1, 2008, for employers in vio-
each year of service purchased, as determined lation. Under the legislation, all employers are
Other legislation. Active and contributing by the actuary for the system. The local gov- required to use the Basic Employment Verifi-
members of a city or municipal retirement ernment entity that currently employs the cation Pilot Program, which has existed since
system who participate in the State Employee member shall furnish the retirement system November 1997, is jointly operated by the U.S.
Retirement System and who have rendered with documentation of the prior service being Citizenship and Immigration Service (under
prior service as a full-time firefighter with a claimed by the member, as requested by the the Department of Homeland Security) and
nonparticipating city employer which has retirement system. the Social Security Administration, and is
been annexed into a city or municipality that used to verify the authorization of all newly
participates in the retirement system may Arizona hired employees. Currently, an employer’s
purchase credit, including credit for hazard- participation in the project is voluntary, and
ous duty service in the retirement system, for Immigrant protection. Legislation was enacted participating employers may be accessed via
prior service if the member pays to the secre- that prohibits employers from intentionally or the Internet. For a first violation of this new
tary-treasurer of the retirement system, prior knowingly employing an unauthorized alien. State law, during a 3-year period in which an
to the date of the member’s retirement, a sum The same legislation established penalties, be- employer knowingly employs an unauthorized
Monthly Labor Review • January 2008 7
State Labor Laws, 2007
alien, the court may order the appropriate li- defender, and prosecutor. The officer must file was amended. Every employer of an employee
censing agencies to suspend all licenses held by an affidavit containing specific information in engaged in any occupation in which gratuities
the employer, unless the employer files a sworn order to request the prohibition on the release have been customarily and usually consti-
affidavit with the county attorney within 3 of information. tuted and have been recognized as a part of
business days. The affidavit must state that the remuneration for hiring purposes shall now
employer has terminated the employment of Arkansas be entitled to an allowance for gratuities as a
all unauthorized aliens and that the employer part of the hourly wage rate in the amount of
will not intentionally or knowingly employ an Drug and alcohol testing. Any person em- no less than $3.62 per hour. This entitlement
unauthorized alien. Suspended licenses will ployed by a State employer in a safety-sensi- is based upon the proviso that the employee
remain suspended until the employer files the tive transportation job, or who has submit- actually received that amount in gratuities and
signed affidavit with the county attorney. For a ted an application for employment with an that the application of the foregoing gratuity
first intentional violation, the court will order employer in the State in a safety-sensitive allowances results in payment of wages other
the suspension of all of the employer’s licenses transportation job, for which drug and alco- than gratuities to tipped employees, including
for a minimum of 10 days. A second knowing hol tests are required under the Federal Mo- full-time students, of not less than $2.63 per
or intentional violation of the new State law tor Carrier Safety Regulations and who holds hour.
will result in the court ordering the permanent a commercial driver’s license shall submit to
revocation of all of the employer’s licenses that drug and alcohol testing. The employer must Overtime. The State definition of an em-
are held at the employer’s place of business. report to the State Office of Driver Services ployee, as covered by minimum-wage and
the results of the alcohol screening test, or the overtime law, was amended. The definition no
Minimum wage. The State Revised Statutes refusal to provide a specimen for the screening longer includes (1) an employee employed in
concerning employer liability for nonpayment test, within 3 business days. The State Office connection with the publication of a weekly,
of the minimum wage were amended. In any of Driver Services shall maintain the informa- semimonthly, or daily newspaper with a cir-
action or proceeding occurring on or after tion received, which is considered confidential, culation under 4,000; (2) one employed on
January 1, 2007, an employer or other entity in a database, to be known as the Commercial a casual basis in domestic service to provide
is not liable if either fails to pay the minimum Driver Alcohol and Drug Testing Database, babysitting services or companionship serv-
wage, as long as the party in question proves for at least 3 years. An employer can request ices for those who are no longer able to care
that the act or omission was in good faith and information from the database for each em- for themselves due to age or infirmity; (3) one
that it conformed with and relied on a State ployee who is subject to drug and alcohol test- engaged in the delivery of newspapers to retail
administrative regulation, order, ruling, ap- ing. The penalty for an employer who know- subscribers; or (4) a homeworker engaged in
proval, interpretation, administrative practice, ingly fails to check the database as required is making wreaths composed principally of nat-
or enforcement policy issued by the State In- $1,000, effective July 1, 2008. The penalty for ural holly, pine, cedar, or other evergreens and
dustrial Commission. knowingly hiring an employee with a record harvesting natural holly, pine, cedar, and other
of a positive alcohol or drug test in the data- evergreens used in making such wreaths. In
Time off. The State Revised Statutes regarding base is $5,000. The penalty for an employer another enactment, the director of the State
victims’ rights were amended. Employers who who knowingly fails to report an occurrence Department of Labor may now authorize em-
have 50 or more employees for each working regarding a drug test is $500. Such penalties ployment in excess of the standard 40 hours
day in each of 20 or more calendar weeks in do not apply to the State or to an agency or per week or may authorize the calculation of
the current or preceding calendar year, along political subdivision of the State. overtime on a basis other than the regular rate
with agents of such employers, are required to of pay required by the law (time and one-half
allow an employee who is a victim of a crime Immigrant protections. No State agency may for hours exceeding 40 hours per week) for
to leave work. The allowance to leave work is enter into or renew a public contract for serv- employment that (1) necessitates irregular
in order to provide the employee with time ices with a contractor who knows that the hours of work; (2) is performed at a piecework
to obtain, or attempt to obtain, an order of contractor or one of its subcontractors em- rate; (3) pays on a commission basis in a retail
protection, an injunction against harassment, ploys or contracts with an illegal immigrant or service establishment; (4) is performed in
or any other injunctive relief to help ensure to perform work under the contract. Before a hospital or enterprise engaged in the care
the health, safety, or welfare of the victim or executing a public contract, each prospective of the sick, the aged, or the mentally ill by an
victim’s child. contractor shall certify, in a manner that does independently owned and controlled local en-
not violate Federal law in existence on January terprise in the wholesale or bulk distribution
Worker privacy. The employment position of 1, 2007, that the contractor is neither employ- of petroleum products; or (5) is performed
a State code enforcement officer was added to ing nor contracting with an illegal immigrant under a collective bargaining agreement.
the list of public employees, and others, who at the time of the certification. If a contractor
may request that the general public be prohib- violates this provision, the State shall require Worker privacy. The commercial driver’s
ited from accessing the unique identifier and the contractor to remedy the violation within license record in effect on January 1, 2007,
the recording date contained in indexes of re- 60 days. If the contractor fails to remedy the and released by the State Office of Driver
corded instruments maintained by the county violation within 60 days, the State shall ter- Services to the employer or prospective
recorder. The officer (or others) may request minate the contract for breach of contract. employer of a commercial driver shall be a
the recorder to prohibit access to the officer’s The contractor shall be liable to the State for complete record that includes any convic-
residential address and telephone number actual damages if the contract is terminated tions, disqualifications, and other licensing
contained in instruments or writings recorded under such circumstances. Subcontractors are actions for violations required to be retained
by the county recorder and made available on required to submit certification on their em- on a commercial driver’s license record. If
the Internet. The officer also may request that ployees within 30 days after execution of the a driver operates a motor vehicle and is
the general public be prohibited from access- contract. convicted of being intoxicated by drugs or
ing records maintained by any of the following alcohol or for refusing to submit to chemi-
county employees: assessor, treasurer, peace Minimum wage. The State law concerning cal testing, the driver shall be disqualified
officer, judge, justice, commissioner, public the minimum-wage allowance for gratuities from operating a commercial motor vehicle
8 Monthly Labor Review • January 2008
for 1 year or 3 years, depending upon the in the manufacture, repair, or maintenance of vided at the facility. Violators of the amended
type of cargo. For a second conviction, dis- computer hardware and related equipment; legislation shall be subject to a civil penalty
qualification is for life (but the driver may (3) the employee is an engineer, drafter, ma- of up to $25,000. Employees who have been
be reinstated after 10 years if the he or she chinist, or other professional whose work is discriminated against shall be entitled to re-
has been subject to rehabilitation). The pen- highly dependent upon, or facilitated by, the instatement, to reimbursement for lost wages
alties imposed for leaving the scene of an use of computers and computer software pro- and work benefits caused by the acts of the
accident are the same as those listed for op- grams, and the employee is not in a computer employer, or to any remedy deemed warranted
erating a motor vehicle under the influence systems analysis or programming occupation; by the court. A health-care worker who has
of drugs or alcohol or for refusing to submit or (4) the employee is a writer engaged in been discriminated against and who prevails
to chemical testing. writing materials such as box labels, product in court will be entitled to reimbursement
descriptions, documentation, promotional for lost income and for any legal costs associ-
California material, setup and installation instructions, ated with pursuing the case or to any remedy
and other, similar written information. deemed warranted by the court.
Child labor. Legislation was enacted that
extended the authority of the State labor Time off. Legislation was enacted that re- Colorado
commissioner to allow an exemption for mi- quires qualified employers to allow a qualified
nors 16 or 17 years of age who reside in Lake employee who is the spouse of a qualified Equal employment opportunity. The category
County to work up to 60 hours per week dur- member of the Armed Forces of the United of employment nondiscriminatory protec-
ing peak harvest season. The legislation, which States, the National Guard, or the Reserves tions in the State was expanded to cover two
is effective from January 1, 2008, to January to take up to 10 days of unpaid leave while additional protection subcategories. Under
1, 2012, requires that work hours be extended the qualified member is home on leave. A State law, it shall be a discriminatory or un-
only when school is not in session and only qualified employer is defined as any indi- fair employment practice for an employer to
upon written approval of the Lake County vidual, corporation, company, firm, State, city, refuse to hire, to discharge, to promote or
Board of Education. The commissioner may county, municipal corporation, district, public demote, to harass during the course of em-
require inspections of agricultural packing authority, or any other governmental subdivi- ployment, or to discriminate in matters of
plants prior to issuing the exemption. In addi- sion that employs 25 or more employees. A compensation against any otherwise quali-
tion, the legislation removed the requirement qualified employee is defined as (1) a spouse fied person because of disability, race, creed,
that the minor be enrolled in school in Lake of the qualified member, (2) an employee who color, sex, age, national origin, or ancestry.
County for the exemption to apply. Finally, performs service for hire for an employer for Sexual orientation and religion were added to
Lake County is now required to issue an an- an average of 20 or more hours per week, but the list of subcategories covered. In addition,
nual report on working conditions of minors is not an independent contractor, (3) an em- employment agencies are prohibited from
employed in the agricultural packing industry ployee who, within 2 days of receiving official refusing, because of sexual orientation or reli-
in the past year, notwithstanding provisions of notice that the qualified member will be on gion, to list and properly classify an individual
the law that expired on January 1, 2008, mak- leave from deployment, provides the employer for employment, or to refer an individual for
ing agency reports permissive. with notice of his or her intention to take the employment, in a known available job for
leave provided for; and (4) an employee who which such individual is otherwise qualified.
Overtime. An employee in the computer submits written documentation to the em- Finally, it shall also be a discriminatory or un-
software field shall be exempt from the re- ployer certifying that the qualified member fair employment practice for employers, labor
quirement that an overtime rate of compensa- will be on leave from deployment during the organizations, joint apprenticeship commit-
tion be paid if (1) the employee is engaged time the leave provided for is requested. A tees, or vocational schools to act against any
primarily in work that is intellectual or cre- qualified member is defined as a person who qualified person in pursuit of apprenticeship
ative and requires the exercise of discretion is (1) a member of the Armed Forces of the programs, or to discriminate against such per-
and independent judgment; (2) the employ- United States who, during a period of military son, in the terms, conditions, or privileges of
ee’s work involves the application of systems conflict, has been deployed to an area desig- such programs because of sexual orientation
analysis techniques and procedures, including nated as a combat theater or combat zone or religion (as well as against qualified persons
consulting with users to determine hardware, by the President of the United States, (2) a in the other subcategories listed).
software, or system functional specifications; member of the National Guard who has been
(3) the employee is highly skilled and is pro- deployed during a period of military conflict, Immigrant protections. No State agency or
ficient in the theoretical and practical appli- or (3) a member of the Reserves who has been political subdivision shall enter into or renew
cation of highly specialized information to deployed during a period of military conflict. a public contract for services with a contrac-
computer systems analysis, programming, and tor or subcontractor who knowingly employs
software engineering; and (4) the employee’s Whistleblower. Legislation was enacted that or contracts with an illegal alien to perform
hourly rate of pay is not less than $36.00 or amended the new category of medical profes- work under the contract. Prior to executing a
the annualized full-time salary equivalent sionals to whom whistleblower protections public contract for services, each prospective
of that rate ($75,000). This pay rate shall be were extended. Health facilities are prohibited contractor shall certify that, at the time of the
adjusted in accordance with the State Con- from discriminating or retaliating against any certification, it does not knowingly employ or
sumer Price Index for Urban Wage Earners of their patients, employees, medical staff, or contract with an illegal alien and that it has
and Clerical Workers on October 1 of each other health care workers because that per- participated, or attempted to participate, in the
year, to be effective January 1 of the next year. son (1) presented a grievance, complaint, or basic pilot program that confirms the employ-
The exemption does not apply if (1) the em- report to an entity or agency responsible for ment eligibility of all employees who are newly
ployee is a trainee or in an entry-level position accrediting or evaluating the facility or any hired for employment in the United States. If
or has not attained the level of skill and ex- other governmental entity; or (2) initiated, the contractor is not accepted into the basic
pertise necessary to work independently and participated, or cooperated in an investigation pilot program prior to entering into a public
without close supervision; (2) the employee or administrative proceeding related to the contract for services, the contractor shall apply
is engaged in the operation of computers or quality of care, services, or conditions pro- to participate in the program every 3 months
Monthly Labor Review • January 2008
State Labor Laws, 2007
until the contractor is accepted or the pub- or penalized for fulfilling those obligations. cedure required of State Department of Cor-
lic contract for services has been completed, A new section of an existing statute protects rection employees.
whichever is earlier. This provision shall be the health-care worker who makes a good-
neither required nor effective in a public con- faith report or disclosure without malice or Human trafficking. The State Code was
tract for services if the basic pilot program is consideration of personal benefit. The health- amended through the addition of a new sec-
discontinued. care worker is not granted immunity for his tion on human trafficking recognizing the
or her own acts of medical negligence or for aspects of the crime of human trafficking,
Minimum wage. The State minimum wage unprofessional conduct. Also, the health-care defining prohibited activities, and making it
was increased to $6.85 on January 1, 2007. worker must be sure to follow the procedures more likely that the crime will be charged. A
No more than $3.02 per hour in tip income that exist within his or her organization prior person is guilty of involuntary servitude when
may be used to offset the minimum wage of to pursuing any further reporting or disclo- the person knowingly subjects, or attempts
employees who regularly receive tips. A tipped sure activity. to subject, another person to forced labor or
employee is defined as an employee who is services by (1) causing or threatening to cause
engaged in an occupation in which he or she Worker privacy. The State Revised Statutes physical harm (a Class B felony), (2) physi-
customarily and regularly receives more than were amended to remove the names of the cally restraining or threatening to physically
$30.00 a month in tips. county employees and officials from the two restrain the other person (a Class B felony),
published reports that originally listed the (3) abusing or threatening to abuse the law or
Wages paid. Employers are required to pay name, job title, and gross monthly salary of legal process (a Class C felony), (4) knowingly
terminated employees in a timely manner. If each employee. The first report was published destroying, concealing, removing, confiscat-
the employer disputes the amount of wages or in August for the period prior to June of the ing, or possessing any actual or purported
compensation claimed by an employee under same year, and the second report shall be pub- passport or other immigration document, or
the State Revised Statutes, and if, within 14 lished in February and shall list each employ- other actual or purported government docu-
days after the employee’s demand, the em- ee’s salary for the previous calendar year. Each ment, of the other person (a Class E felony),
ployer makes a legal tender of the amount that publication with information on employees’ (5) using blackmail, or using or threatening to
the employer in good faith believes is due, the salaries shall be accompanied by information cause financial harm or financial control, over
employer shall not be liable for any penalty on the countywide average percentage of sal- the other person (a Class F felony). A person
unless, in a legal action, the employee recovers ary that is paid in fringe benefits, including, is guilty of trafficking of persons for forced la-
a greater amount than the amount tendered. but not limited to, insurance, medical care, bor or services (a Class B felony) when a per-
If, within 14 days of receipt of a demand retirement plans, housing, transportation, or son knowingly (1) recruits, entices, harbors,
for payment, the employer fails to mail an other subsidized employee expenses. provides, transports, or obtains, by any means,
employee’s earned, vested, and determinable another person, intending or knowing that
wages or compensation to the place specified Connecticut the person will be subjected to forced labor
in the demand, then the employer is liable for or services, or (2) profits, in a financial man-
the wages or compensation, together with a Human trafficking. The State established ner or by receiving anything of value, from
penalty in the sum of the following amounts: a State Trafficking in Persons Council. The participation in a venture that has engaged in
(1) 125 percent of the amount of such wages council’s responsibilities are to (1) hold meet- an act that is a violation of the State Code. A
or compensation, up to and including $7,500; ings to provide updates and progress reports, person is guilty of sexual servitude of a minor
and (2) 50 percent of the amount of such (2) identify criteria for providing services to when the person knowingly (1) recruits, en-
wages or compensation that exceeds $7,500. adult victims of trafficking, (3) identify crite- tices, harbors, transports, provides, or obtains
If the employee can show that the employer’s ria for providing services to children of traf- by any means, a minor under 18 years of age,
failure to pay was willful, these penalties in- ficking victims, and (4) consult with govern- knowing that the minor will engage in com-
crease by 50 percent. Evidence of a judgment mental and nongovernmental organizations mercial sexual activity, a sexually explicit per-
against the employer within the last 5 years in developing recommendations to strengthen formance, or the production of pornography,
for failure to pay wages or compensation shall State and local efforts to prevent trafficking, or (2) causes a minor to engage in commercial
be admissible as evidence of willful conduct. protect and assist victims of trafficking, and sexual activity or a sexually explicit perform-
Where an action taken by the employee fails prosecute traffickers. Trafficking is defined as ance. Sexual servitude of a minor between the
to recover a greater sum than the amount ten- all acts involved in the recruitment, abduction, ages of 14 and 18 is a Class C felony, while
dered by the employer, the court may, when transport, harboring, transfer, sale, or receipt sexual servitude of a minor under 14 years of
certain conditions are met, award the employ- of persons, within national or across interna- age is a Class B felony.
er reasonable costs and attorneys’ fees incurred tional borders, through force, coercion, fraud,
in such action. or deception, to place persons in situations of Florida
slavery or slaverylike conditions, forced labor,
Whistleblower. Patient safety is of paramount or forced services, such as forced prostitution Drug and alcohol testing. The State Division
importance in the delivery of health care. Pa- or sexual services, domestic servitude, bonded of Pari-mutuel Wagering has adopted and
tients are safest when a health-care worker has slavery labor, or other debt-related bondage. implemented certain rules and procedures that
the right to speak out on the patient’s behalf apply to licensees of slot machine gaming. One
without fear of reprisal or retaliation. Health- Delaware of those rules is that the licensees must imple-
care workers have the right to report patient ment a drug-testing program for employees
safety concerns and to advocate for a patient’s Drug and alcohol testing. Any State Depart- that includes, but is not limited to, requiring
well-being without the risk of disciplinary ac- ment of Education employee working in the each employee to sign an agreement that he or
tion or loss of employment. Many health-care prison education program and whose perma- she understands that the slot machine facility
professions are under existing legal, licensing, nent work assignment location resides within is a drug-free workplace. The division may im-
or ethical obligations to report unsafe prac- or on the campus of a State Department of pose a civil fine of up to $5,000 for each viola-
tices, and it is a violation of public policy for Correction Level 5 or Level 4 facility must tion of the rules and procedures in place under
practitioners in those professions to be fired submit to the same random drug-testing pro- the State statute affecting gaming.
10 Monthly Labor Review • January 2008
Minimum wage. As a result of previously may be claimed or allowed as a deductible 60 days prior to its occurrence. Failure by the
enacted legislation, the State minimum wage business expense for State income taxes for employer to perform such action shall result
was increased to $6.79 per hour, effective the employment of certain employees. The de- in the employer being liable to each affected
January 1, 2008. duction for a business expense may be claimed employee for an amount equal to backpay and
only if such individual is an authorized em- benefits for the period of violation, but not to
Worker privacy. The State statutes were ployee, defined as any individual whose hiring exceed 60 days. This liability may be reduced
amended to provide an exemption from the for employment or continuing employment in by (1) the amount of any wages paid by the
public records requirements for certain rec- the United States does not violate 8 U.S.C., employer during the notification period and
ords and time sheets provided to a govern- Section 1324a, having to do with the unlawful (2) any voluntary and unconditional pay-
ment agency. Personal identifying information employment of aliens. ment not required by a legal obligation. An
that is contained in records documenting an employer of a covered establishment that is
act of domestic violence and that is submitted Inmate labor. Employers participating in actively seeking a buyer for a sale, transfer, or
to an agency by an agency employee is con- prison inmate work programs under the State merger is not required to provide said notice
fidential and exempt from public disclosure. Code shall be prohibited from providing any- until the employer has entered into a bind-
This exemption applies to records submitted thing of value to the State Board of Correc- ing agreement for the sale, transfer, or merger
to an agency that document an act of domes- tions, the State Department of Corrections, of the covered establishment that results in a
tic violence and that are submitted in order to the State Correctional Industries Administra- divestiture. An employer who fails to provide
obtain leave. The release of such information tion, or any officer or employee thereof, other such notice shall be subject to a civil fine not
could expose the victim of domestic violence than the payments authorized by the State to exceed $500 for each day of the violation.
to public humiliation and shame and could Code section pertaining to the inmate work
allow persons to determine the schedule and programs. Prevailing wage. The State Revised Statutes
location of the employee who is the victim of regarding public works were amended. The is-
domestic violence. The information is exempt Hawaii suance of special-purpose revenue bonds for
from release for 1 year after the leave has been a public work project not directly caused by
taken by the victim. Drug and alcohol testing. The State Revised a governmental contracting agency shall be
Statutes were amended by modifying the reported promptly by the director of the State
Workplace violence. An employer who has 50 definitions of two key terms. A substance abuse Department of Budget Finance to the direc-
or more employees must permit an employee onsite screening test is now defined as a portable tor of the State Department of Labor and
who has been employed by the employer for substance abuse test that meets the require- Industrial Relations. When the State Depart-
3 or more months to request and take up to 3 ments of the United States Food and Drug ment of Budget and Finance enters into an
working days of leave in any 12-month period Administration for commercial distribution or agreement with a party to finance or refinance
if the employee or a family or household mem- is manufactured by a facility that is minimally a project with the proceeds of special-purpose
ber of the employee is the victim of domestic certified as meeting the standards established revenue bonds, and such party has entered into
violence. At the discretion of the employer, by the International Organization for Stand- a collective bargaining agreement with a bona
the leave may be taken with or without pay. ardization and that may be used by an em- fide labor union governing the party’s work-
The employee may use the leave to (1) seek an ployer in the workplace. A substance abuse test force, the terms of that collective bargaining
injunction for protection against domestic vi- is any testing procedure designed to take and agreement and associated provisions shall be
olence or an injunction for protection in cases analyze body fluids or other materials from deemed the prevailing wages and terms. Those
of repeat violence, dating violence, or sexual the body for the purpose of measuring the terms shall serve as the basis of compliance for
violence, (2) obtain medical care or medical amount of drugs, alcohol, or the metabolites work on the project for the party’s workforce,
health counseling, or both, for the employee of drugs in the sample test. Every employer provided that the enforcement powers of the
or a family or household member in order to shall administer the test according to the director of the State Department of Labor
address physical or psychological injuries re- package insert that accompanies the test. Em- and Industrial Relations, including the power
sulting from an act of domestic violence, (3) ployers shall have the employee or prospective to collect and maintain certified copies of all
obtain services from a victim-services organi- employee report, within 4 hours after test- payrolls, are not adversely affected.
zation, (4) make the employee’s home secure ing positive, to a laboratory licensed by State The State requirements for public works
from the perpetrator of the domestic violence regulation, and the employers are required to private construction contracts under the State
or seek new housing to escape the perpetra- bear the cost of the laboratory testing. Em- Revised Statutes were amended. The defini-
tor, or (5) seek legal assistance in addressing ployers are empowered to take punitive action tion of a public work now shall also include
issues arising from the act of domestic vio- against any employee who fails to show up for a construction contract between private per-
lence, or attend and prepare for court-related the laboratory test. All information concern- sons if more than 50 percent of the assignable
proceedings arising from the act of domestic ing the substance abuse onsite screening test square feet of a project is leased or assigned
violence. shall be strictly confidential. Under certain for use by the State, by any county, or by any
circumstances, employers are prohibited from agency of the State or any county, whether or
Georgia discharging, suspending, or discriminating not the property is privately owned and (1)
against any employee who tests positive for the lease or other agreement is entered into
Immigrant protections. The portion of the the presence of drugs, alcohol, or the metabo- prior to the contract’s becoming effective or
State Annotated Official Code relating to in- lites of drugs. (2) construction work is performed according
come taxes was amended. On or after January to a plan, specification, or criteria established
1, 2008, no payment, compensation, or other Plant closing. Any employer of an establish- by the State, by any county, or by any agency
remuneration, including, but not limited to, ment covered by State statute shall provide, to of the State or any county. The construction
wages, salaries, bonuses, benefits, in-kind each employee and the State director of labor project owner shall submit weekly certified
exchanges, expenses, or any other economic and industrial relations, written notification payrolls to the governmental leasing agency
benefit, paid for labor services to an individual of a closing, divestiture, partial closing, or re- or the governmental agency that has accepted
and totaling $600 or more in a taxable year location of the business establishment at least the construction project for its use, either of
Monthly Labor Review • January 2008 11
State Labor Laws, 2007
which shall be the governmental contracting an amount less than $3.35 per hour. If the tips a request for review with the commission, the
agency for the construction project. actually received by the employee, combined complainant may not later commence a civil
Because of an amendment to the State Re- with the direct wages paid by the employer, action in a circuit court. If the complainant
vised Statutes, a civil action to recover unpaid do not at least equal the minimum wage, the chooses to commence a civil action in a circuit
wages or overtime compensation may be filed employer must make up the difference. court, the complainant must do so within 90
in any court of competent jurisdiction by any days after receipt of the director’s notice. If the
one or more laborers or mechanics for, and on Illinois director determines that there is substantial
behalf of, the worker(s) and others similarly evidence, the complainant and respondent will
situated. The employees may file an action Child labor. The Hazardous Occupations be notified of the determination. If the com-
for injunctive and other relief against an em- section of the State Child Labor Law was plainant chooses to have the department file a
ployer that fails to pay the prevailing wage to amended to include a section which states complaint with the commission on the com-
its employees as required by this statute and that no minor under 16 years of age shall be plainant’s behalf, then, within 14 days after re-
pursuant to the Federal Labor Management employed, permitted, or allowed to work in ceipt of the director’s notice, the complainant
Cooperation Act. occupations that involve the handling or stor- must request, in writing, that the department
age of human blood, human blood products, file the complaint. If the complainant fails to
Time off. Under current State law, employees human body fluids, or human body tissues. request, in writing and in a timely manner, that
are entitled to 4 weeks of family leave, which the department file the complaint, the com-
shall consist of unpaid leave, paid leave, or a Equal employment opportunity. As the result plainant may commence a civil action only in
combination of paid leave and unpaid leave. of an amendment to the State Human Rights the appropriate circuit court. If the complain-
The law originally permitted either the em- Act, it will now be considered a civil rights ant chooses to commence a civil action in a
ployer or the employee to decide which type violation for a public employer to refuse to circuit court, the complainant must do so in
of leave to apply to a period of family leave. As temporarily transfer a pregnant peace officer the circuit court in the county wherein the
now amended, State law leaves the employee or firefighter to a less strenuous or hazardous civil rights violation was allegedly commit-
as the only one entitled to make the decision position for the duration of the pregnancy. ted. If the department has not issued its report
to take family leave as unpaid leave or to sub- The request must be at the behest of the peace within 365 days after the charge is filed, the
stitute the unpaid leave with accrued vacation, officer or firefighter acting under the advice complainant shall have 90 days to either file
personal, or paid family leave time. There is, of her physician, and the employer must be his or her own complaint with the commission
however, a stipulation: the employee shall not able to reasonably accommodate the request or commence a civil action.
use more than 10 paid leave days per year for or transfer. All applicants for a position in either the
the purpose of family leave, unless an express The State Human Rights Act also was fire or police department of a municipality in
provision of a valid collective bargaining amended to secure the right of freedom from the State shall be under 35 years of age and
agreement authorizes the use of more than 10 sexual harassment in employment in institu- shall be subject to an examination that shall
days of sick leave for such purpose. tions of elementary and secondary education, be public, competitive, and open to all appli-
in addition to those of higher education. It is cants. Reasonable limitations as to residence,
Worker privacy. The State Uniform Informa- now a civil rights violation for any elementary, health, habits, and moral character shall apply.
tion Practices Act was amended to specify secondary, or higher education representative The age limitation does not apply to any per-
that each State agency shall make available, to commit or engage in sexual harassment in son previously employed as a police officer or
for public inspection and duplication during elementary, secondary, or higher education. firefighter in a regularly constituted police or
regular business hours, information regard- It is also a civil rights violation to retaliate fire department of any municipality, regard-
ing (1) the name, address, and occupation against a person because the person has op- less of whether the municipality is located in
of any person borrowing funds from a State posed that which he or she reasonably and in the State or in another state. Applicants who
or county loan program and (2) the amount, good faith believes to be unlawful discrimi- are 20 years of age and who have successfully
purpose, and current status of the loan. Certi- nation or sexual harassment in elementary, completed 2 years of law enforcement stud-
fied payroll records on public works contracts secondary, or higher education. ies at an accredited college or university may
shall not include Social Security numbers The State Civil Rights Act of 2003 now be considered for appointment to active duty
and home addresses. Information on contract includes gender among those issues which with the police department, but shall not have
hires and consultants hired by agencies shall cannot be used by any of unit of State, county, the power of arrest or be permitted to carry
contain the amount of compensation and the or local government to exclude a person from firearms until they have reached 21 years of
duration and objectives of the contract, but participation in, deny a person any benefits of, age. Applicants who are 18 years of age and
not the Social Security numbers or home ad- or subject a person to discrimination under who have successfully completed 2 years of
dresses of the workers or consultants. any program or activity. study in fire techniques, amounting to a total
A charge filed with the State Equal Em- of four high school credits, within the cadet
Idaho ployment Opportunity Commission within program of a municipality may be considered
180 days after the date of an alleged civil rights for appointment to active duty with the fire
Minimum wage. The portion of the State violation shall be deemed filed with the State department of any municipality in the State.
Code concerning the minimum wage was Department of Human Rights on the date it
amended. The amount of the minimum wage was filed with the State Equal Employment Independent contractor. The State Employee
shall now conform to, and track with, the Fed- Opportunity Commission. The director of the Classification Act was amended to address
eral minimum wage. In determining the wag- commission will make a determination regard- the practice of misclassifying employees as
es of a tipped employee, the amount of direct ing substantial evidence, and if it is ruled that independent contractors within the State. The
wages paid by an employer to the employee there is insufficient evidence, then the director State Department of Labor shall post a sum-
shall be deemed to be increased on account of shall give the complainant notice of his or her mary of the requirements in English, Spanish,
tips actually received by the employee—pro- right to seek review before the commission and Polish on its official Web site and on bul-
vided, however, that the direct wages paid to or commence a civil action in the appropriate letin boards in each of its offices. The depart-
the employee by the employer shall not be in circuit court. If the complainant chooses to file ment shall have the power to conduct investi-
12 Monthly Labor Review • January 2008
gations in connection with the administration to the adult minimum wage if he or she (1) be reinstated to his or her former employ-
and enforcement of the law on the issue of works 40 or more hours per week and receives ment status if work for which the employee
employee classification, with the right to a total weekly salary of not less than the adult is qualified exists.
inspect documents related to the determina- minimum wage for a 40-hour week, (2) is paid
tion of whether an individual is an employee. a stipend on a one-time or periodic basis, or Time off. Upon approval from the employ-
Employers may be fined up to $1,500 for each (3) is a minor working with parental consent ee’s agency, an employee may use (1) up to 30
violation of the Act uncovered during a first that has been received in writing prior to the days of organ donation leave in any 12-month
audit. Employers found in violation during commencement of such employment. If the period to serve as a bone marrow or organ
subsequent audits conducted within 5 years of employment is for less than 40 hours per week, donor, (2) up to 1 hour or more to donate
an earlier violation may be fined up to $2,500 then the counselor shall be paid the minimum blood every 56 days, and (3) up to 2 hours
for each violation and shall not be awarded hourly wage for each hour worked. or more to donate blood platelets. Leave for
any State contract until 4 years have elapsed platelet donation may not be granted more
from the date of the last violation. For willful Prevailing wage. The State Prevailing Wage than 24 times in a 12-month period. An
violations, the civil money penalties assessed Act was amended to clarify the fact that the employee may not be required to use accu-
may be double the amount of the usual as- Act applies to the wages of laborers, mechan- mulated sick or vacation leave time before
sessment. Employers found to have commit- ics, and other workers employed in any public being eligible for organ donor leave and must
ted first-time willful violations are guilty of a works, by any public body, and to anyone under present medical documentation before leave
Class C misdemeanor. Employers found guilty contract for public works. This application of can be approved.
of subsequent willful violations committed the Act includes and applies to any mainte- Upon request, an employee subject to the
within 5 years of the previous violation have nance, repair, assembly, or disassembly work State Employee Blood Donation Leave Act
committed a Class 4 felony. The State De- performed on equipment, whether owned, may be entitled to blood donation leave with
partment of Labor, the State Department of leased, or rented. pay. An employee may use up to 1 hour, or
Employment Security, the State Department No employee may use, possess, distribute, more if authorized by the employer or a col-
of Revenue, and the State Workers’ Compen- deliver, or be under the influence of a drug or lective bargaining agreement, to donate blood
sation Commission shall cooperate by sharing alcohol while performing work on a public every 56 days in accordance with appropriate
information concerning any suspected mis- works project. An employee is considered to medical standards established by the Ameri-
classification by an employer or other entity of be under the influence of alcohol if an analysis can Red Cross, America’s Blood Centers, the
one or more of its employees as independent of the alcohol concentration in the employee’s American Association of Blood Banks, or
contractors. These offices and the Office of the blood or breath indicates that the concentra- any other nationally recognized standard.
State Comptroller shall be obliged to check tion is at or above 0.02 percent at the time
such employer or other entity’s compliance of the alleged violation. Before an employer Wages paid. An employee may file a complaint
with the State Employee Classification Act, begins work on a public works project, the with the State Department of Labor alleging
which takes effect January 1, 2008. employer shall have in place a written pro- violations of the State Wage Payment and
gram that meets or exceeds the requirements Collection Act within 1 year after the wages,
Minimum wage. The State minimum wage of the State Substance Abuse Prevention on final compensation, or wage supplements
was increased to $7.50 per hour on July 1, Public Works Projects Act. The program must were due. Any employer or agency thereof
2007. Further increases are scheduled. The be filed with the public body engaged in the who willfully refuses to pay is guilty of a Class
minimum wage is scheduled to increase to public works and must be made available to C misdemeanor upon conviction, and each
$7.75 per hour on July 1, 2008, $8.00 per hour the general public in order to discourage sub- day during which any violation of the Act
on July 1, 2009, and $8.25 per hour on July stance abuse among the employer’s employees. continues shall constitute a separate and dis-
1, 2010. All testing must be performed by a laboratory tinct offense. Any employer whom the State
During the first 90 consecutive calendar that is certified for Federal Workplace Drug director of labor has demanded, or whom a
days after an employee who is 18 years of age Testing Programs by the Substance Abuse and court has ordered to pay wages due an em-
or older and whose wages are based upon the Mental Health Service Administration of the ployee and who fails to do so within 15 days
rates described in the preceding paragraph U.S. Department of Health and Human Serv- after such demand or order is entered shall
and have not been reduced from those rates ices. The employer’s program must include, at be liable to pay a penalty of 1 percent of the
is initially employed by an employer, the em- a minimum, (1) a requirement of a nine-panel wages due per calendar day to the employee
ployer may pay the employee a wage that is urine drug test plus a test for alcohol; (2) a for each day of delay in paying such wages, up
not more than 50 cents less than the appli- requirement that employees submit to prehire, to an amount equal to twice the sum of un-
cable minimum wage described in the preced- random, reasonable-suspicion, and postac- paid wages due the employee. Such employer
ing paragraph. In addition, an employer may cident drug and alcohol testing (however, shall also be liable to the State Department of
pay a day or temporary laborer who is 18 years prehire testing of an employee is not required Labor for 20 percent of such unpaid wages.
of age or older at a rate that is not more than if the employee has been participating in a Any employer who knowingly discharges or
50 cents less per hour than the applicable random-testing program during the 90 days in any other manner knowingly discriminates
minimum wage if the employment is occa- preceding the work commencement date); (3) against any employee because that employee
sional or irregular and requires no more than a procedure for notifying an employee who has made a complaint to his employer or the
90 days to complete. Also, there shall be no tests positive for the presence of a drug in his State Director of Labor is guilty of a Class C
discrimination between employees on the ba- or her system or who refuses to submit to test- misdemeanor upon conviction.
sis of sex or mental or physical handicap. For ing; and (4) reasonable-suspicion testing. An
those occupations involving gratuities, each employee who is barred or removed from work Workplace violence. A person commits an
employer is allowed a tip credit not to exceed for having tested positive for the presence of a aggravated assault when, in committing an
40 percent of the applicable minimum wage. drug or for refusing to take appropriate drug assault, he or she knows the individual as-
Finally, no camp counselor who resides on the tests may return to work after testing negative saulted to be a caseworker, an investigator, or
premises of a seasonal camp of an organized in subsequent tests or successfully completing another person employed by the State De-
not-for-profit corporation shall be subject a rehabilitation program. The employee shall partment of Healthcare and Family Services
Monthly Labor Review • January 2008 1
State Labor Laws, 2007
or the County Department of Public Aid and in an emergency service operation. A public sation, job title, business address, business
is upon the grounds of a public-aid office or employee may bring a civil action against the telephone number, job description, education
grounds adjacent thereto or is in any part of employer in the county of employment in and training background, previous work ex-
a building used for public-aid purposes. If order to seek back wages, reinstatement to a perience, and dates of first employment of a
the caseworker, investigator, or other person former position, fringe benefits wrongly de- law enforcement officer who is operating in
employed and engaged in the business of nied or withdrawn, or seniority rights wrongly an undercover capacity.
the agency is violated upon the grounds of a denied or withdrawn.
home of a public-aid applicant or recipient, or The State Code pertaining to military Iowa
of any other person being interviewed or in- service was amended. The code now contains
vestigated in connection with the employee’s an exemption from service on any jury in any Drug and alcohol testing. The State amended
discharge of his or her duties, an assault is also court in the State for individuals who serve its policy for the employer practice of unan-
committed. In addition, an assault is commit- on active duty in the Armed Forces of the nounced drug and alcohol testing. Employers
ted if the assailant knowingly accosts a utility United States or the State National Guard. may conduct unannounced drug or alcohol
worker while the utility worker is engaged in In addition, military family leave of 10 days tests on employees selected from three pools.
the execution of his or her duties or is pre- is applicable to employers who employ at least The first pool consists of the entire employee
vented from performing those duties or if the 50 employees for each working day during population at a particular worksite of the em-
attack is in retaliation for the utility worker’s each of at least 20 calendar workweeks. To be ployer, except for employees not subject to test-
performing the said duties. This latter cat- eligible, employees must have been employed ing pursuant to a collective bargaining agree-
egory also includes independent contractors by the employer for at least 12 months and ment, those who are not scheduled to be at
working on behalf of a public utility or tele- have worked at least 1,500 hours during the work at the time the testing is to be conducted
communications entity. 12-month period immediately preceding the because of their status (for example, those on
day the leave begins. A covered employee annual or sick leave and those in training), and
Indiana must be the spouse, parent, grandparent, or those who have been excused from work pur-
sibling of a person who is ordered to active suant to the employer’s work policy prior to
Minimum wage. The State minimum-wage duty. The employee is entitled to unpaid leave, the time the testing is announced to the em-
law was amended so that, effective June 30, or the employee may opt to use earned paid ployees. The second pool consists of the entire
2007, employers in the State who employ two vacation leave, personal leave, or other leave; full-time active employee population at a par-
or more employees during a workweek were alternatively, the employer may require that ticular worksite, minus those exempt because
required to pay wages to the employees of not some such paid leave be utilized. of a collective bargaining agreement, those not
less than the minimum wage required under scheduled to be at work at the time testing is
the Fair Labor Standards Act of 1938, as Wages paid. Every person, firm, corporation, conducted because of their status, and those
amended. This wage requirement does not ap- or association doing business in the State shall who have been excused from work pursuant
ply to tipped employees, in relation to which pay each employee at least semimonthly, or bi- to the employer’s work policy. The final pool
the employer may claim an allowed tip credit weekly if requested, the amount due the em- consists of all employees at a particular work-
where appropriate. In addition, the employer ployee. The payment shall be made in lawful site who are in a pool of employees in a safety-
is not required to pay the State minimum currency of the United States, by negotiable sensitive position and who are scheduled to be
wage for the first 90 days of employment to check, draft, or money order, or by electronic at work at the time testing is conducted, other
employees who have not yet reached 20 years transfer to a financial institution designated than employees not subject to testing pursuant
of age, as long as the rate paid complies with by the employee. Payment shall be made for to a collective bargaining agreement or em-
the rate required for such employees under all wages earned up to a date not more than ployees who are not scheduled to be at work
the Fair Labor Standards Act. 10 business days prior to the date of payment. at the time testing is to be conducted or who
Payments may be made at shorter intervals. have been excused from work pursuant to the
Time off. A new section was added to the If an employee voluntarily leaves employ- employer’s work policy prior to the time the
State Code to highlight the work of the State ment, either permanently or temporarily, the testing is announced to the employees.
wing of the Civil Air Patrol. No member of employer shall not be required to pay the em-
the Civil Air Patrol participating in an emer- ployee an amount due until the next usual and Equal employment opportunity. The catego-
gency service operation may be disciplined for regular day for payment of wages as estab- ries of sexual orientation and gender identity
absence from work by any public or private lished by the employer. If an employee leaves were added to other discriminatory categories
employer if the member has notified his or employment voluntarily and without the em- listed in the State Code. Employers now may
her immediate supervisor in writing that the ployer’s knowing the employee’s whereabouts not refuse to hire, accept, register, classify, or
person is a member of the Civil Air Patrol. or address, the employer is not subject to pay refer for employment any applicant for em-
No action may be taken against the person if until 10 business days have elapsed after the ployment or any employee on the basis of the
he or she already has reported to work on the employee has made a demand for the wages person’s sexual orientation or gender identity.
day of the emergency service operation and due and has furnished the employer with an Nor may employers discharge any employee
secures authorization from the supervisor to address to where the wages may be sent or or otherwise discriminate in employment
leave the duty station. The commander or any forwarded. A business day is any day other against any applicant for employment or any
other officer in charge of the Civil Air Patrol than Saturday, Sunday, or a legal holiday. employee on the same basis.
also must present a written statement to the
member’s immediate supervisor indicating Worker privacy. The categories of public rec- Minimum wage. Effective April 1, 2007, the
that the member was engaged in an emergen- ords that may not be disclosed by a public State minimum wage was increased to $6.20
cy service operation at the time of his or her agency unless access to the records is specifi- per hour. A further increase to $7.25 will be-
absence from work. A public employer in the cally required by a State or Federal statute or is come effective on January 1, 2008. Employers
State is in violation of this legislation if the ordered by a court under the rules of discovery may, but are not required to, pay employees
employer disciplines an employee for missing have been expanded. The excluded categories the applicable State minimum wage until the
work because of the employee’s participation now comprise the name, amount of compen- employee has completed 90 calendar days of
1 Monthly Labor Review • January 2008
employment with the employer. Employers, cluding the total amount of the employee’s net
however, are required to pay those same em- wages, as stated on the employee’s earnings Drug and alcohol testing. The State Employ-
ployees an hourly wage of at least $5.30 as of statement. Finally, employers may not charge ment Practices Law regarding testing for
April 1, 2007, and a rate of at least $6.35 as of an employee initiation, loading, or other par- substance abuse among temporary workers
January 1, 2008. ticipation fees to receive wages payable in an was amended. The use of consent forms is
electronic fund transfer to a payroll account, prohibited. An employer may not require, re-
Wages paid. If an employer fails to send an except for the cost required to replace a lost, quest, or suggest that any employee or appli-
employee’s wages for direct deposit on or by stolen, or damaged payroll card. cant for employment sign or agree to any form
the regular payday, the employer is liable for or agreement that attempts to (1) absolve the
the amount of any overdraft charge if the Kentucky employer from any liability that may arise out
overdraft is created on the employee’s account of the imposition of the substance abuse test or
because of the employer’s failure to send the Minimum wage. The State minimum wage (2) waive an employee’s or applicant’s rights, or
wages on or by the regular payday. The over- was increased to $5.85 per hour in June and eliminate or diminish an employer’s obligation,
draft charges may be a basis for a monetary is scheduled for two subsequent increases: under the State Revised Statutes Annotated,
claim and for damages under the State Code. to $6.55 per hour on July 1, 2008, and to except as provided by State statute. An em-
$7.25 per hour on July 1, 2009. If the Federal ployment agency, as defined by State statute,
Kansas minimum wage is increased in excess of the may request a written waiver for a temporary
minimum hourly rate required by State law, placement from an individual already in its
Equal employment opportunity. The governor the State minimum wage shall be increased, employ or on a roster of eligibility, as long as
signed an executive order dedicated to the on the same date, to the same amount as the the client company has an approved substance
principles of freedom and equality among required Federal hourly rate. abuse testing policy and the individual has not
all of the State’s citizens and declared that all been assigned work at the client company in
State entities shall make certain that the fol- Louisiana the 30 days previous to the request. The test
lowing programs are in place: (1) a diversity must otherwise comply with both State stand-
management program that includes outreach Whistleblower. Persons who violate State law ards and the employment agency’s approved
recruitment and hiring, support, mentoring, relating to freedom from reprisal against pub- policy regarding applicant testing. The agency
development, rewards, and recognitions for lic employees for the disclosure of improper may not take adverse action against the indi-
achievement, as well as a means of moni- acts shall be subject to the fines and penalties vidual for refusal to sign a waiver.
toring the effectiveness of the program; (2) provided by State law. If, as a result of a public
a strong program, including training and a hearing, there is a finding of probable cause Family issues. The State expanded the reasons
prompt and confidential method for express- to believe that a person has violated such a for which employees may utilize family medi-
ing complaints, prohibiting discrimination criminal law of the State, the finding shall be cal leave. In addition to being permitted to
and harassment on account of race, color, forwarded for appropriate action to the dis- take family medical leave for the birth of their
gender, sexual orientation, gender identity, trict attorney of the parish in which the viola- own or their spouse’s children, employees may
religion, national origin, ancestry, age, mili- tion occurred. Each agency head shall ensure now take leave for the birth of their domes-
tary or veteran status, or disability status, and that a notice containing an explanation, in tic partners’ children or for the placement of
(3) a program of awareness regarding legal plain language, of the rights of employees children 16 years of age or younger with their
protections for persons with disabilities, in under State law is posted and maintained at domestic partners in connection with the
order to allow qualified applicants to apply some convenient and conspicuous location in adoption of the children by the employees or
for employment and to allow employees with each building in which more than 10 public their domestic partners. A domestic partner is
disabilities to perform the essential functions employees are employed. defined as an employee’s partner who (1) is a
of jobs and enjoy the privileges and benefits mentally competent adult; (2) has been legally
of employment. Maine domiciled with the employee for at least 12
months; (3) is not legally married to, or legally
Wages paid. Employers in the State are now Discharge. Public employers may deduct any separated from, another individual; (4) is the
permitted to designate the method by which service fees owed by an employee to a collec- sole partner of the employee and expects to re-
employees receive wages, provided that all tive bargaining agent from the employee’s pay, main so; and (5) is jointly responsible with the
wages are paid by at least one of the following without signed authorization from the em- employee for each other’s common welfare, as
methods: (1) in lawful money of the United ployee, and remit those fees to the bargaining evidenced by a joint living arrangement, joint
States; (2) by check or draft negotiable in the agent as long as the fee obligation arises from financial arrangements, or joint ownership of
community wherein the place of employment a lawfully executed and implemented collec- real or personal property.
is located; (3) by the transfer or deposit of tive bargaining agreement. In the event that The State Revised Statutes regarding fam-
electronic funds to an automated clearing- a fee payor owes any arrears on its fee obli- ily military leave were amended. Subject to
house member financial institution account gations, the deductions authorized by statute State requirements, an employer who now
designated by the employee; (4) by payroll may include an installment on a payment plan employs 15 or more employees shall provide
card. Employers that elect to pay wages by to reimburse all arrears, but in each pay period each eligible employee up to 15 days of fam-
one of these methods shall offer an alternative may not exceed 10 percent of the gross pay ily military leave per deployment if requested
form or payment method as a default option owed. Public employees have a right to join by the employee. Such family military leave
for employees who fail to designate a financial or refrain from joining labor organizations. authorized under the statute may be taken
institution account for the transfer or deposit Thus, public employers may not require an only within one or more of the following
of electronic funds. In addition, employers employee to become a member of a union, an timeframes: (1) the 15 days immediately prior
that elect to use one of the methods listed employee organization, or a bargaining agent. to deployment, (2) deployment if the military
shall allow employees at least one means of Nor may such employers terminate or disci- member is granted leave, and (3) the 15 days
access to their funds per pay period at no cost pline an employee for not paying union dues immediately following deployment. Family
to the employee for an amount up to and in- or fees of any type. military leave granted under the statute may
Monthly Labor Review • January 2008 1
State Labor Laws, 2007
consist of unpaid leave. In addition, the em- mobile salesperson is defined as a person who extortion and, upon conviction, is subject to
ployee is entitled to military leave upon the is engaged primarily in selling automobiles imprisonment not exceeding 18 months, or
death or incurrence of a serious health condi- or trucks as an employee of an establishment a fine not exceeding $500, or both. A person
tion of the employee’s spouse, domestic part- engaged primarily in the business of selling seeking to extort money, property, labor, serv-
ner, parent, or child if the spouse, domestic those vehicles to the ultimate purchaser. The ices, or anything of value from someone may
partner, parent, or child, as a member of the term “automobile salesperson” now includes a not falsely accuse, or threaten to falsely accuse,
State military forces or the U.S. Armed Forces, person who is engaged primarily in assisting that person or another person of a crime or
including the National Guard and Reserves, in the financing and providing of insurance of anything that, if the accusation were true,
dies or incurs the serious health condition products to the ultimate purchaser. An auto- would tend to bring either of the latter indi-
while on active duty. Finally, the definition mobile service writer has been newly defined viduals in contempt or disrepute. A person
of an employer, as amended, now no longer as a person employed for the purpose of, and who violates this section of the statutes is
includes an independent contractor. engaged primarily in, receiving, analyzing, guilty of a misdemeanor and, upon conviction,
The State’s Family Medical Leave Law and referencing requests for service, repair, is subject to imprisonment not exceeding 10
was amended to provide for intermittent or analysis of motor vehicles as an employee years, or a fine not exceeding $10,000, or both.
leave, as is provided under the Federal Fam- of an establishment engaged primarily in the Parents, guardians, or persons who have per-
ily and Medical Leave Act. The 10 weeks of business of selling automobiles or trucks to manent or temporary care, custody, or respon-
family medical leave that qualified employees the ultimate purchaser, except that the term sibility for the supervision of another may not
are entitled to in any 2 years no longer has to “automobile service writer” does not include consent to the taking or detention of the other
be used consecutively. Family medical leave on an employee who is paid on an hourly basis. for prostitution. Persons found guilty of such
an intermittent or reduced schedule may be actions are guilty of human trafficking and,
taken, subject to some limitations, such as an Plant closing. Employers or persons proposing upon conviction, are subject to imprisonment
agreement reached by the employer and the to terminate or to relocate an establishment not exceeding 10 years, or a fine of $5,000,
employee and medical necessity. covered by State statute outside the State shall or both. If the victim of the trafficking is a
notify employees and municipal officers of the minor, the person who is convicted is guilty
Minimum wage. Because of previously passed municipality in which the plant is located, of a felony and, upon conviction, is subject
legislation, the State minimum wage was in- in writing, not less than 60 days prior to the to imprisonment not exceeding 25 years, or a
creased to $7.00 per hour on October 1. termination or relocation. Persons breaching fine of $15,000, or both.
The coverage portion of the State Mini- this requirement commit a civil violation for
mum Wage Act, as it pertains to domestic which a fine of not more than $500 may be Living wage. The State enacted a new law
workers, was amended. Coverage now extends adjudged, except that a fine is not adjudged if requiring that a living wage be applied to all
to an individual employed in domestic service the relocation is necessitated by a physical ca- employees working on State procurement
in or about a private home and engaged di- lamity or if the failure to give notice is due to contracts. The law requires contractors or
rectly by the resident or owner of the home or unforeseen circumstances. Persons violating subcontractors that employ more than 10 em-
the family of the resident or homeowner. sections of the State statutes regarding plant ployees and that have a contract for $100,000
A service employee is now defined to mean closings, with the exception of the circum- or more to comply with the requirements of
any employee engaged in an occupation in stances just discussed, commit a civil violation the State Living Wage Law. The law does not
which the employee customarily and regularly for which a fine of not more than $1,000 per apply to employers who employ 10 or fewer
receives more than $30.00 a month in tips. violation may be adjudged. Each employee af- employees and who have a State contract for
Among such employees are waiters, waitress- fected constitutes a separate violation. services valued at less than $500,000. The law
es, bellhops, counter personnel, and bartend- does apply to employees of covered employers
ers who serve customers. The tips received by Maryland for the duration of the contract if at least one-
a service employee become the property of half of the employees’ time during any work-
the employee and may not be shared with the Human trafficking. The State statutes deal- week relates to a State contract for services or a
employer. Service employees may volunteer ing with human trafficking and servitude were subcontract for services under a State contract.
to pool their tips to be split evenly among amended to include extortion. A person may The employees must be paid at least $11.30
themselves and other service employees or not obtain, attempt to obtain, or conspire to per hour if the State contract services are val-
may volunteer to share a part of their tips with obtain money, property, labor, services, or any- ued at 50 percent or more of the total value of
other employees who do not generally receive thing of value from another person with the the contract and are performed in Montgom-
tips directly from the customers. Tips that are person’s consent if the consent is induced by ery, Prince Georges, Anne Arundel, Howard,
automatically included in the customer’s bill the wrongful use of actual or threatened (1) or Baltimore counties or in Baltimore city.
or that are charged to a credit card must be force or violence; (2) economic injury; or (3) If the employees are performing the work in
given to the service employee, except that if destruction, concealment, removal, confisca- the State, but outside of these locales, the em-
the employer must pay the credit card com- tion, or possession of any immigration or gov- ployees must be paid at least $8.50 per hour.
pany a percentage on each sale, the employer ernment identification document with intent The commissioner of the State Department of
may deduct from the employee’s tip a propor- to harm the immigration status of either the Labor is required to assess the appropriateness
tion of the credit card charge that is the same person in question or another person. If the of the measures used to adjust the wage rates
proportion that the tip is to the total bill. A tip value of the property, labor, or services is $500 every 3 years.
that is charged to a credit card must be paid or more, then the person who violates this
by the employer to the employee by the next section of the statutes is guilty of the felony Offsite work. The State Department of Trans-
regular payday and may not be held while the of extortion and, upon conviction, is subject portation has implemented the Telework
employer is awaiting reimbursement from a to imprisonment not exceeding 10 years, or Partnership with Employers Initiative by col-
credit card company. a fine of $5,000, or both. If the value of the laborating with several State agencies to allow
property, labor, or services is less than $500, employees to work outside the traditional en-
Overtime. The State labor laws regarding au- then the person who violates this section of vironment, either at home or in a satellite of-
tomobile dealerships were amended. An auto- the statutes is guilty of the misdemeanor of fice. Telework affords employees flexible work
1 Monthly Labor Review • January 2008
arrangements and reduced commuting costs, evening school. If the minor regularly attends facility, any persons with developmental dis-
with an eye toward providing for a better the evening school or a day school, then each abilities, a licensed boarding-care facility, or a
work-family balance, reduced stress, improved week the minor must present his or her em- “Housing with Services Establishment.”2
job satisfaction, and reduced travel time and ployer with a school record demonstrating
expense. On or before December 31, 2007, proper attendance. When the record shows Other laws. Upon the hiring of a job appli-
the State Department of Transportation shall unexcused absences, the minor’s attendance cant, an employer is required to provide the
evaluate the State Department’s Telework shall be deemed irregular and insufficient. applicant with written notice of the rights and
Partnership with Employers Initiative and is- Appropriate teachers or authorized persons remedies afforded employees by State law.
sue a report of its findings and recommenda- who issue permits may excuse justifiable ab-
tions regarding the initiative to the governor. sence or waive the school attendance require- Missouri
ments if the physical or mental condition of
Massachusetts the minor is such as to render his or her at- Discharge. Any employer in the State that is
tendance at school harmful or impracticable. found, in any State court or in any U.S. district
Child labor. A person shall not employ a child court located in the State, to have terminated,
or permit a child to work in, about, or in con- Independent contractor. By Executive order demoted, or taken an adverse employment
nection with any establishment or occupation of the State Governor, it shall be the policy action toward a veteran of the war on terror
before 6:00 a.m. or after 10:00 p.m., except of all agencies in the Executive Branch of the during his or her deployment shall be subject
as an operator in a regular-service telephone State government to prohibit the use of un- to an administrative penalty in the amount of
exchange or a telegraph office until, but not documented workers in connection with the $35,000 when certain conditions are met. The
after, 11:00 p.m. A child 16 years of age or performance of State contracts. As a condi- director of the State Division of Employment
older may be employed until, but not after, tion of receiving Commonwealth funds, Security shall take judicial notice of judgments
11:30 p.m. on any night other than a night all contracts entered into by the executive in suits brought under the Uniformed Services
preceding a regularly scheduled schoolday. In branch shall require the associated contrac- Employment and Reemployment Rights Act.
addition, a child 16 years of age or older may tors to certify that they shall not knowingly
be employed in a restaurant or racetrack until, use undocumented workers in connection Time off. No public or private employer shall
but not after, 12 midnight on any night other with the performance of the contract and terminate an employee for joining, as a volun-
than a night preceding a regularly scheduled that they shall verify the immigration status teer firefighter, any fire department or fire pro-
schoolday. An establishment that stops serv- of all workers assigned to the contract with- tection district, including, but not limited to,
ing clients or customers at 10:00 p.m. may out engaging in unlawful discrimination. The any municipal, volunteer, rural, or subscription
employ a child until, but not after, 10:15 p.m. employer further shall not recklessly alter, fire department or organization, volunteer fire
A child employed after 8:00 p.m. must be falsify, or accept altered or falsified docu- protection association, State Disaster Medi-
under the direct and immediate supervision ments from any such worker. All contracts cal Assistance Team, State Task Force One, or
of an adult acting in a supervisory capacity shall specify that a breach of any of the terms Urban Search and Rescue Team. No public or
who is situated in the workplace and is rea- of this Executive order during the period of private employer shall terminate an employee
sonably accessible to the child. This stipula- the contract may be regarded as a material who is a volunteer firefighter or a member of
tion does not apply to a child employed at a breach subjecting the contractor to sanctions any of the aforementioned agencies and who
kiosk, cart, or stand located within the com- including, but not limited to, monetary pen- is absent from, or late to, his or her employ-
mon areas of an enclosed shopping mall that alties, withholding of payments, or suspen- ment in order to respond to an emergency
employs security personnel every night from sion or termination of the contract. that arises before the time the employee is to
8:00 p.m. until the mall is closed to the pub- report to his or her place of employment. An
lic. Whoever employs or permits any minor Michigan employer may charge, against an employee’s
to work contrary to the preceding legislative regular pay, any time that the employee loses
requirements shall be punished by a fine of Minimum wage. The State minimum wage from employment because of the employee’s
not less than $500 or more than $5,000, or was increased to $7.15 per hour on July 1, response to an emergency in the course of
by imprisonment of not more than 1 month, 2007. performing his or her duties as a volunteer
or both. As an alternative to initiating crimi- firefighter or member of any of the aforemen-
nal proceedings to enforce any violation of Minnesota tioned agencies. The employer may request
the statute, the State attorney general may the employee to provide a written statement
issue a written warning or citation and may Overtime. The commissioner of the State from the supervisor or acting supervisor of
impose a separate civil money penalty of not Department of Labor and Industry may is- the volunteer fire department, or any of the
more than $250 for the first violation, not sue an order requiring an employer to comply other aforementioned agencies, stating that
more than $500 for the second violation, and with the State statute prohibiting the employ- the employee responded to an emergency and
not more than $2,500 for the third and each er from taking action against a nurse solely citing the time and date of the emergency.
subsequent violation. If said person employ- on the grounds that the nurse fails to accept
ing such a minor has been notified in writing an assignment of additional consecutive work Montana
by any authorized inspector or supervisor, hours in excess of a normal work period at the
the violations shall be considered to consti- facility at which the nurse is employed. The Minimum wage. State law now requires that
tute a separate offense for every day during nurse may decline to perform the additional the State minimum wage of $6.15 per hour
which the employment continues. If a minor work because doing so may, in the nurse’s exclude both the value of tips received by
16 years of age or older fails to meet the re- judgment, jeopardize patient safety. Notwith- the employee and the special provisions for a
quirements for completion of the sixth grade, standing the prohibition, the nurse may be training wage. In addition, the minimum wage
a person shall not employ that minor while scheduled for duty or required to continue on is now subject to the following annual cost-
a public evening school is maintained in the duty for more than one normal work period of-living adjustment: no later than September
town where the minor resides or is employed in an emergency. The prohibition does not ap- 30 of each year, an adjustment of the wage
if said minor is authorized to attend a public ply to a nursing facility, an intermediate-care amount specified in the first sentence of this
Monthly Labor Review • January 2008 17
State Labor Laws, 2007
section shall be based upon the increase, if any, days shall give the employer as much advance as applications, resumes, reference letters,
from August of the preceding year to August notice thereof as is practicable. The employer and school transcripts. A finalist (1) is any
of the year in which the calculation is made, may require certification from the proper applicant who reaches the final pool of appli-
in the Consumer Price Index for All Urban military authority to verify the employee’s eli- cants, numbering four or more, from which
Consumers, U.S. city average, for all items, as gibility. Any employee who exercises the right the successful applicant is to be selected, (2)
published by the Bureau of Labor Statistics to family military leave shall, upon expiration is an original applicant when the final pool
of the U.S. Department of Labor. The wage of the leave, be entitled to be restored to the of applicants numbers fewer than four, or (3)
amount established by means of this formula, position held by the employee when the leave is an original applicant among four or fewer
rounded to the nearest 5 cents, becomes effec- began or to a position with equivalent senior- original applicants.
tive on January 1 of the following year. ity status, benefits, pay, and other terms and Legislation was enacted that established
conditions of employment. This stipulation the State Credit Report Protection Act. The
Offsite work. A joint resolution of the State does not apply to an employee who has not Act excludes the release of data to certain
Senate and House of Representatives urged been so restored if the employer proves that Federal, State, and local government entities
the executive and judicial branches of the the employee was not restored because of con- and stipulates that employers shall not pub-
State to implement telecommuting policies ditions unrelated to the employee’s exercise of licly post or publicly display, in any manner,
within those branches’ agencies, identifying his or her rights under the Act. more than the last four digits of an employee’s
functions that may be performed by employ- Social Security number. Specifically pro-
ees who work offsite, adopting policies and Wages paid. The section of the State Wage scribed by the Act is intentionally communi-
procedures, and implementing strategies for Payment and Collection Act concerned with cating more than the last four digits of the
the policy initiatives. Offsite work is seen as a commissions was amended. Paid leave, other Social Security number or otherwise making
means of reducing energy usage, the Nation’s than earned but unused vacation leave, pro- available more than the last four digits to the
dependency on foreign oil, and funding for ter- vided as a fringe benefit by the employer shall general public or to an employee’s coworkers.
rorists and as a means of improving highway not be included in the wages due and payable Nor may employers require an employee to (1)
safety by reducing traffic. Further, telecom- at the time of separation, unless the employer transmit more than the last four digits over
muting has been shown to increase worker and the employee (or the employer and the the Internet, unless the connection is secure
productivity, improve retention of employees, collective bargaining representative) have spe- or the information is encrypted; (2) use more
and bring efficiency to the use of employer cifically agreed otherwise. In addition, wages than the last four digits to access an Internet
assets. Another benefit of such a policy is a include commissions on all orders delivered Web site, unless a password, unique personal
reduction in the number of children without and on all orders on file with the employer at identification number, or other identification
parents at home. the time of separation, less the dollar amount device is also required for access; or (3) use the
for any returned or canceled orders. Whenever last four digits as an employee number for any
Time off. An employee who terminates em- an employer separates an employee from the type of employment-related activity.
ployment for a reason not reflecting discredit payroll, the unpaid wages constituting com-
upon him- or herself is entitled, upon the missions shall become due on the next regular Nevada
date of termination, to cash compensation payday following the employer’s receipt of
for unused vacation leave, assuming that the payment for the goods or services from the Hours worked. The State has revised the defi-
employee has worked the qualifying period. customer from which the commission was nition of “intrastate driver.” Under the State
Vacation leave contributed to the sick leave generated. The employer shall provide the Revised Statutes, the term now excludes driv-
fund is nonrefundable and is not eligible for employee a periodic accounting of outstand- ers who work for a public utility. In addition,
cash compensation upon termination. An em- ing commissions until all commissions have the exemption for commercial intrastate driv-
ployee may contribute accumulated vacation been paid or the orders have been returned or ers from the hours-of-service limitations in
leave to a nonrefundable sick leave fund. In canceled by the customer. If an employee es- certain emergencies was repealed.
consultation with the State employee group tablishes a claim for unpaid wages and secures
benefits council, the State Department of Ad- judgment on such claim, an amount equal to Minimum wage. As a result of a ballot meas-
ministration shall adopt rules for implement- the judgment may be recovered from the em- ure vote, the State minimum wage was in-
ing such a policy. ployer. If the nonpayment of wages is found creased on November 28, 2006, to $6.15 per
to be willful, an amount equal to 2 times the hour if the employer does not provide health
Nebraska amount of unpaid wages shall be recovered benefits or $5.15 per hour if the employer
from the employer and shall be remitted to provides health benefits at a total cost for
Time off. The State legislature enacted the the State treasurer for distribution. premiums to the employee of not more than
Family Military Leave Act, under whose 10 percent of the employee’s gross taxable in-
authority and requirements any employer Worker privacy. The State Revised Statutes come from the employer. A 2007 amendment
that employs between 15 and 50 employees Cumulative Supplement concerning informa- to State law now requires that these wage
shall provide up to 15 days of unpaid family tion that may be withheld from release to the rates be adjusted by the amount of increases
military leave to an employee during the time public by the lawful custodian of the records, in the Federal minimum wage that exceed
Federal or State deployment orders pertaining unless publicly disclosed in an open court, $5.15 per hour or, if greater than $5.15 per
to that employee are in effect. If the employer open administrative proceeding, or open hour, by the cumulative increase in the cost
employs more than 50 employees, then the meeting, or disclosed by a public entity pursu- of living. The increase in the cost of living
employer shall provide up to 30 days of un- ant to its duties, was amended in order to in- shall be measured by the percent increase as
paid family military leave. The employee shall clude an additional category of materials that of December 31 in any year, over the level as
give at least 14 days’ notice of the intended may be withheld from release. Job application of December 31, 2004, of the Consumer Price
date upon which the family military leave will materials submitted by applicants, other than Index, as published by the Bureau of Labor
commence if the leave will consist of 5 or more finalists who have applied for employment Statistics, or of the successor index of that
consecutive workdays. Employees taking fam- by any public body, may be withheld from same Federal agency. No Consumer Price
ily military leave for fewer than 5 consecutive release. Job application materials are defined Index adjustment for any 1-year period may
18 Monthly Labor Review • January 2008
be greater than 3 percent. Tips or gratuities pursuant to specific State Revised Statutes by permitted by the statute, shall be allowed at
received by employees shall not be credited as an agency that provides child welfare services least 8 consecutive hours of off-duty time
being any part of, or offset against, the wage when such report details a plan for the place- immediately following the overtime hours
rates required by the State law. ment of a child. worked. Employers who willfully violate State
Because of previously passed legislation The destination for the release of infor- statutes regarding this issue shall be subject to
calling for increases in the cost of living, the mation about past and present employees by civil penalties.
minimum wage in the State was increased to both public and private employers is no longer
$6.33 per hour for employees without a quali- restricted to a law enforcement agency. The Wages paid. The list of reasons for which
fied health plan as defined by the State. For information may now be released to a public employers are authorized to withhold wages
those employees whose employer has offered safety agency if the past or present employee was expanded. Employers are required or au-
them a qualified health plan, the basic hourly is an applicant for the position of either fire- thorized, by State or Federal law, to withhold
rate is set at $5.30 per hour. fighter or peace officer. wages for the purpose of paying payroll taxes;
With regard to State statutes and State paying union dues; making health welfare,
constitutional provisions governing the mini- New Hampshire pension, and apprenticeship contributions;
mum wage paid to an employee, two types of making voluntary contributions to charities;
relationships do not constitute employment Child labor. No youth 16 or 17 years of age, paying for housing and utilities; paying into
relationships and are therefore not subject except such a youth who has graduated from savings funds held by someone other than
to those minimum-wage provisions. The first high school or obtained a general equivalency the employer; paying voluntary rental fees for
type is a relationship between a rehabilitation diploma, shall be employed by an employer, nonrequired clothing; paying for voluntary
facility or workshop established by the State unless the employer obtains and maintains cleaning of uniforms and nonrequired cloth-
Department of Employment, Training, and on file a signed, written document from the ing; paying for the employee’s use of a vehicle
Rehabilitation under the statutes and a handi- youth’s parent or legal guardian permitting under State statutes; paying for medical, sur-
capped individual participating in a training the youth’s employment. Employers who vio- gical, hospital, or other group insurance ben-
or rehabilitative program of such a facility or late this requirement may be fined an amount efits without financial advantage to the em-
workshop. The second type is the relationship not to exceed $2,500 for each violation. ployer when the employee has given his or her
between a community-based training center written authorization and deductions are duly
that has been issued a certificate of qualifica- Minimum wage. The State minimum wage recorded; and paying for required clothing not
tion by the State Department of Health and was increased to $6.50 per hour on September covered by the definition of a uniform.
Human Services, Division of Mental Health 1, 2007. The rate is scheduled for a subsequent Employers in the State are now permitted
and Developmental Services, and an enrollee increase, to $7.25 per hour, on September 1, to pay employees by payroll card. In doing
participating in a training or rehabilitative 2008. If, at any time, the Federal minimum- so, the employer shall provide the employee
program of such a center. wage rate is higher than the State minimum- at least one free means of withdrawing up to,
wage rate, then the employer shall pay the and including, the full amount of the balance
Time off. The issue of employees having greater rate. Employees of a restaurant, hotel, in the employee’s payroll card or payroll card
to use leave to serve time on jury duty was motel, inn, or cabin who customarily and account during each pay period at a financial
amended in the State Revised Statutes. If a regularly receive tips must now earn at least institution or other location convenient to the
person is summoned to appear for jury duty, $30 per month to be considered a tipped em- place of employment. None of the employer’s
the employer and any employee, agent, or offi- ployee. Employers of tipped employees must costs associated with a payroll card or payroll
cer of the employer shall not, as a consequence pay the employees at least 45 percent of the card account shall be passed on to the employ-
of the person’s service as a juror or prospective applicable minimum wage. ee. Employers may initiate payment of wages
juror, require the employee to use sick leave or to an employee by electronic fund transfer to
vacation time. Nor shall the employer require Overtime. Legislation was enacted regulating a payroll card account only after the employee
the employee to work (1) within 8 hours be- mandatory overtime for nurses and assistants has voluntarily consented in writing to that
fore the time at which the employee is to ap- and providing penalties for violations thereof. method of payment. Consent to payment of
pear for jury duty or (2) between 5 p.m. on the With certain exceptions, a registered nurse, wages by electronic fund transfer to a payroll
day of the employee’s appearance for jury duty licensed practical nurse, or licensed nursing card account shall not be a condition of either
and 3 a.m. the following day if the employee’s assistant licensed under State statutes shall hiring or continued employment. The written
service has lasted for 4 or more hours (includ- not be disciplined or lose any right, benefit, consent signed by the employee shall include
ing the time taken to go to and return from or privilege for refusing to work more than the terms and conditions of the payroll card
the place where court is held) on the day of 12 consecutive hours. The exceptions are option. Employers also must offer the em-
his or her appearance for jury duty. Persons (1) nurses participating in surgery, until the ployee the option to discontinue receipt of
who violate these revised statutes are guilty of surgery is completed; (2) nurses working in wages by a payroll card or payroll card account
a misdemeanor. critical care units, until another employee at any time, without penalty to the employee.
beginning a scheduled work shift relieves the
Worker privacy. The exceptions that authorize nurse; (3) nurses working in home health care Worker privacy. The commissioner of the
the release of the home address of a peace offi- settings, until another qualified nurse or cus- State Department of Employment Security
cer by a law enforcement agency in certain cir- tomary caregiver relieves the nurse; (4) nurses may enter into a reciprocal electronic data-
cumstances were amended. The home address working to meet a public health emergency; exchange agreement with the Social Security
of a peace officer may be released if the officer and (5) nurses covered by collective bargain- Administration. The exchange of such infor-
has been arrested and the home address is in- ing agreements containing provisions ad- mation is permitted so long as the informa-
cluded in any of the following: (1) a report of dressing the issue of mandatory overtime. A tion is limited to detecting and preventing
a 911 call; (2) a police report, an investigative nurse may be disciplined for refusing to work fraud, waste, and abuse in Social Security Ad-
report, or a complaint that a person has filed mandatory overtime in any of the preceding ministration programs and in the entitlement,
with a law enforcement agency; (3) a state- five situations. Any nurse who is mandated eligibility, and benefit payment amounts of
ment made by a witness; (4) a report prepared to work more than 12 consecutive hours, as individuals under specific titles of the Social
Monthly Labor Review • January 2008 1
State Labor Laws, 2007
Security Act. Authorized Federal employees the State Division of Wage and Hour Com- first violation and up to $5,000 for each sub-
shall be granted access by State statute on a pliance determines that an immediate suspen- sequent violation.
case-by-case basis. The information shall be sion is in the public interest. The contractor
provided only upon a finding by the commis- must be afforded an opportunity to contest Wages paid. State legislation was enacted that
sioner that sufficient guarantees of continued the immediate suspension. made it an unlawful practice for a temporary-
confidentiality are in place. The State requirements for prevailing help service firm to willfully withhold or divert
wages to be paid for construction work on wages for any purpose not expressly permitted
New Jersey State-owned properties were amended. Ev- by statute. In addition to imposing a fine or
ery contract in excess of the prevailing-wage a penalty, the attorney general may refuse to
Employment agencies. Legislation was enacted contract threshold amount for any public issue or renew, and may suspend or revoke, a
that regulates the use of certain transportation work to which any public body is a party, or firm’s registration to operate as a temporary-
services utilized in connection with the place- for public work to be done on property or help service firm. No refusal, suspension, or
ment of individuals in employment by tem- premises owned by, leased to, or leased by a revocation shall be made, except upon reason-
porary-service firms. The legislation requires public body, shall contain a provision stating able notice to, and the opportunity to be heard
employees to obtain transportation services the prevailing-wage rate that can be paid to by, the applicant or registrant.
to get to or from the site of work. When the the workers employed in performance of the
firm provides transportation services with any contract. Such a contract shall also contain Workplace security. The State Department of
vehicle owned, leased, or otherwise under its a provision whereby, if it is found that any Law and Public Safety shall perform crimi-
control, the firm is responsible for compliance worker employed by the contractor or any nal history record background checks on any
with the relevant laws regarding the vehicle subcontractor covered by such contract, then applicants employed by, or applicants to be
and its use and with recordkeeping as required the public body, the lessee to whom the public employed by, independent contractors in a
by the attorney general. If the firm does not body is leasing a property or premises, or the critical position at a designated facility. The
provide transportation services, but refers, lessor from whom the public body is leasing State attorney general, in consultation with
directs, or requires the individuals to use any or will be leasing a property or premises may the State director of the Office of Homeland
other provider of transportation services, or terminate the contractor’s or subcontractor’s Security and Preparedness, the State com-
offers no practical alternative to the use of the right to proceed with the work. The contractor missioner of environmental protection, and
services of the provider, the firm is required and his or her sureties shall be liable for any industry representatives, shall determine the
to obtain and keep on file documentation excess costs occasioned thereby to the public titles and qualifications for all positions that
that each provider is in compliance with the body, to any lessee to whom the public body is shall be designated as critical positions. The
relevant laws. Such firms may not require the leasing a property or premises, or to any lessor department shall perform a thorough identity
individuals to use transportation provided by from whom the public body is leasing or will verification check on these applicants, to in-
the firm or another provider of transportation be leasing a property or premises. clude, at a minimum, a credit investigation, an
services if those individuals have other trans- Employers in the construction industry examination of the applicant’s Social Security
portation available. Firms failing to comply who improperly classify employees as inde- number to detect informational inconsisten-
with this legislation on more than one occa- pendent contractors not only deprive these cies, and a cross-referencing of all applicants
sion may have their registration as a tempo- workers of Social Security and other benefits against appropriate law enforcement adviso-
rary-help service firm suspended or revoked while reducing the employers’ State and Fed- ries and terror watch lists. The information
by the State attorney general. This regulatory eral tax withholdings and related obligations, obtained cannot be released to any non-
requirement does not apply (1) if the firm but also make other businesses bear higher criminal justice agency, unless authorized by
requires the employees to use their own ve- costs for complying with employment law at the Federal Bureau of Investigation. Criminal
hicles or other transportation of their choice a competitive disadvantage. Accordingly, an history background checks and all identity
to and from work or (2) if public transporta- employer, or any officer, agent, superintend- verification checks shall be repeated for previ-
tion is available at the times needed and the ent, foreman, or employee of the employer, ously qualified employees at least once every 5
firm permits the employees to use the public who fails to properly classify an individual as years, for as long as they are employed by an
transportation. an employee for purposes of the State Prevail- independent contractor in a critical position.
ing Wage Act and other State statutes, and
Prevailing wage. The prohibition against any who fails to pay wages, benefits, taxes, or other New Mexico
contractor or subcontractor who has been contributions required by those acts, shall
debarred from public work due to violations be guilty of a disorderly person’s offense and Child labor. A child under the age of 16 may
of the prevailing-wage law by having used a shall, upon conviction, be fined not less than be employed without obtaining a work permit
firm, corporation, or partnership in which the $100 or more than $1,000, or be imprisoned and without any restrictions on the age of the
contractor had an interest has been strength- for not less than 10 or more than 90 days, or child or time of employment if the child is
ened by legislation. The legislation provides both. Each week during any day of which an employed by a parent in an occupation other
that when certain conditions are met, a rebut- employee is misclassified, and each employee than manufacturing, mining, or any other oc-
table presumption may arise asserting that a so misclassified, shall constitute a separate of- cupation found to be particularly hazardous
contractor or subcontractor who is debarred fense. Any knowing violation is a crime of the or detrimental to the health of the child; or
from prevailing-wage work has an interest in second degree if the contract is for $75,000 is employed as an actor or performer in mo-
another firm, corporation, or partnership. The or more, a crime of the third degree if the tion picture, theatrical, radio, or television
presumption shifts the burden of proof from contract is between $2,500 and $75,000, and productions; or is employed to sell or deliver
the State Department of Labor and Workforce a crime of the fourth degree if the contract newspapers, with the parent’s consent, during
Development to the individual contractor to is for $2,500 or less. Any violation, even if the school term or during vacation. The child
prove otherwise under certain circumstances. not done knowingly or willfully, renders the must be attending school as required and may
The department is permitted to immediately violator guilty of a disorderly person’s offense not engage in such employment except at
suspend a contractor’s registration prior to a and may, in addition, subject the violator to times when he or she is not required at school.
formal hearing on the matter if the director of administrative penalties for up to $2,500 for a The employer of a child employed in one of
20 Monthly Labor Review • January 2008
the aforementioned activities is not required the State Commercial Driver’s License Act. statutes. A person is guilty of labor trafficking
to obtain and preserve a work permit in ac- if he or she compels or induces another person
cordance with other sections of the Child Minimum wage. Legislation was enacted to engage in labor or recruits, entices, or har-
Labor Act. A performer under 18 years of age that increased the State minimum wage in bors another person by, among other activi-
who is participating in the performing arts, two stages. The first increase, effective January ties, (1) requiring that the labor be performed
including motion picture, theatrical, radio, or 1, 2008, raises the minimum wage to $6.50 to retire, repay, or service a real or purported
television products, is considered a child sub- per hour. The second increase, effective on debt that the actor has caused by a system-
ject to the State Child Labor Act, unless the January 1, 2009, raises the minimum wage to atic ongoing course of conduct to defraud
performer (1) has satisfied the compulsory $7.50 per hour. Tipped employees must still such person; (2) withholding, destroying, or
education laws of the State, (2) is married, receive at least $2.13 per hour in cash wages. confiscating any actual or purported passport,
(3) is a member of the U.S. Armed Forces, Employers may consider tips as part of wages, immigration document, or other actual or
or (4) is legally emancipated. Such child may but the total of the tips and the employer’s purported government identification docu-
not begin work earlier than 5:00 a.m., and the cash wage shall not equal less than the mini- ment of another person with intent to impair
workday must end no later than 10:00 p.m. mum-wage rates just mentioned. Agricultural said person’s freedom of movement; or (3)
on evenings preceding school days and 12:00 employers who furnish food, utilities, supplies, using force or engaging in any scheme, plan,
a.m. on mornings of nonschool days. A child or housing to an employee engaged in agricul- or pattern to compel or induce such person to
performer’s working hours are restricted as ture may deduct the reasonable value of such engage, or continue to engage, in labor activ-
follows: under 6 years of age, the child shall furnished items from any wages due the em- ity by means of instilling fear in such person
work for no more than 6 hours in 1 day; over ployee. For a period of 2 years, cities, counties, that if the demand is not complied with, the
6 years of age and under 9 years of age, the home-rule municipalities, and other political actor or another person will perform one or
child shall work for no more than 8 hours in subdivisions of the State shall neither adopt more of certain types of actions, including,
1 day; (c) over 9 years of age and under 16 nor continue in effect any law or ordinance but not limited to, (a) causing physical injury,
years of age, the child shall not work for no that would mandate a minimum wage higher serious physical injury, or death to a person;
more than 9 hours in 1 day; and (d) between than the wage set forth in the State Minimum (b) causing damage to property, other than
16 years of age and under 18 years of age, the Wage Act. This prohibition expires on Janu- the property of the actor; (c) engaging in
child shall work for no more than 10 hours in ary 1, 2010. A local law or ordinance, whether other conduct constituting a felony or unlaw-
1 day. No child under 14 years of age shall be advisory or self-executing, that is in effect on ful imprisonment in the second degree; and
employed or permitted to labor at any gain- January 1, 2007, and that provides for a higher (d) causing criminal charges or deportation
ful occupation unless otherwise provided for minimum-wage rate than the rate set forth in proceedings to be instituted against a person.
in the Child Labor Act. No child over 14 the State Minimum Wage Act shall continue Labor trafficking is a Class D felony, while sex
years of age and under 16 years of age shall be in full force until repealed. trafficking is a Class B felony. The State Of-
employed or permitted to labor at any gain- fice of Temporary and Disability Assistance
ful occupation without procuring and filing a Time off. Nursing mothers have a right to use may coordinate with and assist law enforce-
work permit, unless otherwise provided for in a breast pump in the workplace and to have a ment agencies and district attorney’s offices
the Child Labor Act. Employers who employ flexible break time in which to use it. Certain to access appropriate services for victims of
a child in violation of the State Child Labor stipulations are contingent upon this right of human trafficking.
Act are guilty of a petty misdemeanor for a the nursing mother who is an employee, and
first violation and a misdemeanor for second the employer shall provide a clean, private Prevailing wage. The State Prevailing Wage
or subsequent convictions. space near the employee’s workspace, and not Law was amended to require contractors and
a bathroom, for using the breast pump. The subcontractors to provide written notice to all
Drug and alcohol testing. A new section was employer is not liable for storage or refrig- laborers, workers, or mechanics of the prevail-
added to the State Motor Carrier Safety Act. eration of breast milk, payment for a nursing ing wage for their particular job classification
A motor carrier (a vehicle that carries freight mother’s break time in addition to established on each pay stub and, on a biannual basis, to
or passengers) is now required to have an in- employee breaks, or payment of overtime while provide the telephone number and address of
house drug and alcohol testing program or a nursing mother is using a breast pump. the State Department of Labor. The biannual
be a member of a consortium which provides notice must also contain a statement asserting
testing that meets Federal requirements. At New York that it is the laborer’s, worker’s, or mechanic’s
the time of registration or renewal of registra- right to contact the department or some other
tion of a commercial motor vehicle, a motor Child labor. The legislature enacted legisla- representative if the laborer, worker, or me-
carrier shall certify to the State Department tion to amend the State Labor Law, the State chanic is not receiving the proper prevailing
of Motor Vehicles and to the Motor Vehicle Arts and Cultural Affairs Law, and the State rate of wages or supplements for his or her
Division of the State Taxation and Revenue General Business Law in relation to certain particular job classification. Failure to comply
Department that the motor carrier is in com- dancers. It is now unlawful for any person to shall result in the assessment of a civil money
pliance with the testing protocol. If the mo- employ, use, or exhibit any person under 18 penalty of $50 for the first violation, $250 for
tor carrier is a member of a consortium, the years of age as a dancer or performer in any a second violation, and $500 for each subse-
carrier shall provide the names of the persons portion of a facility open to the public where- quent violation.
who operate the consortium. When a medical in performers appear and dance or otherwise
review officer of either the motor carrier’s or perform unclothed. Any operator of such a Time off. The definition of an employer un-
the consortium’s testing program determines facility who knowingly violates the provisions der State labor law, wherein an employer is
that a positive test result is valid, the officer of the State statutes shall be subject to a civil defined as a person or entity that employs 20
shall report the findings to the Motor Vehicle penalty of up to $500. or more employees at at least one site, was
Division of the State Taxation and Revenue amended to now include the State itself, in
Department. The division shall then enter the Human trafficking. The definition of human addition to counties, towns, cities, school dis-
positive test results into the commercial driv- trafficking includes the victims of sex traffick- tricts, public authorities, or other governmen-
er’s license information system pursuant to ing and labor trafficking as defined by State tal subdivisions of any kind, as an employer.
Monthly Labor Review • January 2008 21
State Labor Laws, 2007
An employer must grant 3 hours of leave and (4) to conduct postoccupancy inspections or institution where women are housed or
of absence in any 12-month period to an em- of migrant housing in accordance with the employed. Proper supervision by a duly des-
ployee who seeks to donate blood. The leave of provisions of the State General Statutes. If an ignated custodial agent assigned by the State
absence may not exceed 3 hours, unless oth- operator receives a preoccupancy inspection secretary of corrections allows for more flex-
erwise agreed to by the employer, and must rating from the State Department of Labor ibility in the kinds of inmate placements.
comply with appropriate requirements of no- of 100-percent compliance for a particular
tice. An employer may not retaliate against an migrant housing unit for 2 consecutive years, Worker privacy. Information contained in
employee for requesting or obtaining a leave then, in the third year, the operator shall personnel files and that is relevant to possible
of absence. The employer is not prevented have the right to conduct the preoccupancy criminal misconduct may be made available
from providing leave for blood donation in inspection for that particular migrant hous- to law enforcement and the district attorney
addition to any leave allowed under this law, ing unit for him- or herself. Such operators in order to assist in the investigation of (1) a
which does not affect an employee’s rights to must register the migrant housing with the report made to law enforcement pursuant to
any other employee benefit. State Department of Labor 45 days prior to State statutes or (2) any report to law enforce-
occupancy and must notify, in writing, the ap- ment regarding an incident of arson, attempt-
Wages paid. State law relating to the pay- propriate local health department, which shall ed arson, destruction of, theft from, theft of,
ment of wages and penalties for violations then inspect the housing for compliance with embezzlement from, or embezzlement of any
was amended. The phrase “clerical and other specific State General Statutes. Such opera- personal or real property owned by the local
workers” includes all employees, except com- tors also shall request a preoccupancy inspec- board of education. Employees shall be given
mission salespersons and any person employed tion in the year following a year in which the 5 working days’ prior written notice of any
in a bona fide executive, administrative, or operator conducted a self-inspection. disclosure under State statute, to permit the
professional capacity whose earnings exceed employees to apply to the district attorney for
$900 per week. The agreed-upon terms of Drug and alcohol testing. Upon receipt of a an in-camera review prior to the date of dis-
employment of a salesperson shall be reduced notice of a positive drug or alcohol test, or of a closure to determine whether the information
to writing, signed by employer and employee, refusal to participate in a drug or alcohol test, is relevant to the possible criminal misconduct.
kept on file by the employer for not less than 3 the State Division of Motor Vehicles, pursu- Failure of the employee to apply for a review
years, and made available to the commissioner ant to State General Statute 20–37.19, must shall constitute a waiver by the employee of
of labor upon request. The failure by an em- disqualify a commercial driver’s license holder any relief under the State statute.
ployer to produce such written terms of em- from operating a commercial motor vehicle Notwithstanding any other law relating to
ployment upon request by the commissioner until receipt of proof of successful completion the privacy of personnel records, the Retire-
shall give rise to a presumption that the terms of assessment and treatment by a substance ment Systems Division of the Department of
of employment presented by the commis- abuse professional in accordance with 49 State Treasurer shall furnish the State Fiscal
sioned salesperson are the agreed-upon terms Code of Federal Regulations Section 382.503. Records Division direct online read-only ac-
of employment. If an employer has violated a Employers of employees or applicants for em- cess to information on active and retired mem-
provision of the State statutes regarding the ployment who test positive, or employers of bers or to records maintained by the division
day of rest or of meal periods, the commis- any employee who refuses to participate, in a in online information systems. Direct online
sioner may issue an order directing the pay- drug or alcohol test required under 49 Code read-only access shall not include access to
ment of a civil penalty in an amount not to of Federal Regulations Parts 382 and 655 medical records of individual members.
exceed $1,000 for a first violation, $2,000 for must notify the division, in writing, within 5 Local boards of education shall maintain
a second violation, and $3,000 for a third or business days following the employer’s receipt records of each of their employees, showing the
subsequent violation. of confirmation of a positive drug or alcohol following: name; age; date of original employ-
test or of an employee’s refusal to participate ment or appointment; terms of the contract
Worker privacy. An employer shall provide in the test. The notification must include the by which the employee is employed, whether
reasonable unpaid break time or permit an driver’s name, address, driver’s license number, written or oral, past and current, to the extent
employee to use paid break time or meal time and Social Security number, as well as the re- that the board has the written contract or a
each day to allow the employee to express sults of the drug or alcohol test or documenta- record of the oral contract in its possession;
breast milk for her nursing child for up to 3 tion from the employer of the refusal by the current position; title; current salary; date and
years following the child’s birth. The employer employee to take the test. amount of most recent increase or decrease in
shall make reasonable efforts to provide a salary; date of most recent promotion, demo-
room or other location, in close proximity to Inmate labor. The State General Statutes were tion, transfer, suspension, separation, or other
the work area, where the employee can express amended to permit the State Department of change in position classification; and office or
milk in privacy. No employer shall discriminate Correction to establish work assignments station to which the employee is currently as-
in any way against an employee who chooses for inmates or allow inmates to volunteer in signed. These records are subject only to rules
to express breast milk in the workplace. service projects that benefit units of State or and regulations for their safekeeping adopted
local government (or tax-exempt) entities that by the local board of education, and every per-
North Carolina serve the citizens of the State. Such work as- son having custody of the records shall permit
signments may include the use of inmate la- them to be inspected and examined by any
Agriculture. The State commissioner of la- bor and the use of department resources in the person during regular business hours. Persons
bor has the power and duty (1) to delegate, production of finished goods. Any products so denied access to any record for the purpose of
to the State director of the Agriculture Safety produced may be donated to the government inspecting, examining, or copying the record
and Health Bureau, the power and duties unit or tax-exempt organization at no cost. An shall have the right to compel compliance by
necessary to ensure safe and healthy migrant additional amendment to the statutes struck application to a court of competent jurisdic-
housing conditions; (2) to supervise the direc- the exclusion of female convicts from working tion for a writ of mandamus or other appro-
tor; (3) to issue preoccupancy certificates to on public roads or streets and the restriction priate relief.
certify that housing for migrant workers has of male prisoners from working in any build-
been found to be in compliance with the law; ings utilized by any State department, agency, Workplace security. The State chief informa-
22 Monthly Labor Review • January 2008
tion officer may require background investi- sue an order to the person requiring him or officers with respect to the confidentiality of
gations of any employee or prospective em- her to appear and give evidence, or otherwise certain personnel information. The legislation
ployee, including a criminal history record produce documentary evidence, requested by expanded the materials excluded from the
check, which may include a search, based the department regarding the matter under definition of “public record.” Now excluded
on a person’s fingerprints, of the State and investigation. are photographs of a peace officer who holds
National Repositories of Criminal Histories. a position or has an assignment that may in-
The background report is not a public record Minimum wage. The State legislature enacted clude undercover or plainclothes positions.
under the State General Statutes. The State a series of minimum-wage increases, effective Also excluded are the individual’s home ad-
Department of Justice may provide, to the the same dates as the effective dates for the dress, Social Security number, and personal
State Office of Information Technology Serv- anticipated increases in the Federal minimum telephone number; bank account, debit card,
ices, the criminal history, from the State and wage. When the Federal minimum-wage rate and charge card or credit card numbers; the
National Repositories of Criminal Histories, rose on July 24, the State minimum-wage rate name of any beneficiary of employment ben-
of any current or prospective employee, volun- was increased from $5.15 per hour to $5.85 efits; the identity of any charitable organiza-
teer, or contractor consenting to the criminal per hour. The next State increase, set at $6.55 tions to which the person contributes and the
record check and the use of fingerprints and per hour, is scheduled for implementation 1 amounts of the contributions thereto; and
other identifying information required by year after the first, and the final increase in the identity and amounts of any employment
the State and National Repositories, as well the series, set at $7.25 per hour, is scheduled benefit deductions.
as any additional information required by the for implementation 1 year after the second
State Department of Justice. The State Office increase. Oklahoma
of Information Technology shall keep all such
information that it receives confidential. Worker privacy. Employee retirement records Drug and alcohol testing. The sections of the
are now confidential. A contributor to a State law relating to the State Employment Secu-
North Dakota retirement program may purchase up to 5 years rity Act of 1980 and the State Standards for
of service credit with either pretax or after-tax Workplace Drug and Alcohol Testing Act
Equal employment opportunity. The defini- monies, at the Public Employees Retirement were amended. In any claim for compensa-
tion of the term “discriminatory practice” in System Board’s discretion. If an employer has tion brought by a discharged employee, a
the State Century Code was amended. A dis- purchased service credit for an employee, the copy of the results of the drug or alcohol test
criminatory practice is now defined as an act following elements, and only the following undergone by the employee shall be accepted
or attempted act that, because of race, color, elements, of information may be obtained as prima facie evidence of the administration
religion, sex, national origin, age, physical or from the employer: the employee’s and em- and results of the test. No employer may re-
mental disability, status with regard to mar- ployer’s names, the name of the retirement quest or require an applicant or employee to
riage or public assistance, or participation in program in which the employer participates, undergo drug or alcohol testing, unless the
lawful activity off the employer’s premises the amount of service credit purchased by the employer has first adopted a written, detailed
during nonworking hours that is not in direct employer, and the total amount expended by policy setting forth the specifics of the test-
conflict with the essential business-related in- the employer for that purchase of the service ing program, which employees are subject to
terests of the employer, results in the unequal credit. testing, and the circumstances under which
treatment, separation, or segregation of any testing may be requested or required. It shall
persons or denies, prevents, limits, or oth- Ohio be sufficient for the employer to state in the
erwise adversely affects, or, if accomplished, written policy that the substances tested for
would deny, prevent, limit, or otherwise ad- Prevailing wage. By law, threshold amounts shall be drugs and alcohol, as defined in the
versely affect, the benefit of enjoyment by any for contract coverage under the State prevail- Standards for Workplace Drug and Alcohol
person of employment, labor union member- ing-wage law are adjusted every 2 years in Testing Act, including controlled substances
ship, public accommodations, public services, accordance with the change in the Census approved for testing by the State commis-
or credit transactions. Bureau’s Implicit Price Deflator for Con- sioner of health. The employer’s drug-testing
The State Century Code pertaining to the struction, provided that no increase exceeds 6 policy must explain the testing methods and
duties and powers of the State Department of percent for the 2-year period. As a result, ef- collection procedures, the consequences of
Labor, as related to human rights enforcement, fective January 1, 2008, the threshold amount refusing to undergo testing, and the poten-
was amended. Upon receiving and investigat- for new construction rose from $69,853 to tial adverse personnel actions ensuing upon
ing complaints alleging violations of the code, $73,891, and the threshold amount for recon- a positive result. An applicant or employee
the department shall emphasize conciliation struction, remodeling, or renovation increased has the right to have explained, in confidence,
to resolve the complaints. During the process from $20,955 to $22,166. the test results; his or her rights to obtain in-
of thoroughly investigating a complaint, the formation and records related to the testing;
department may require the attendance of a Worker privacy. Public records are those confidentiality requirements; and all appeal
witness and the production of certain records records defined as being kept by any public procedures, remedies, and sanctions. Any em-
or objects at any hearing or with reference to office, such as the State, county, city, village, ployer implementing a drug-testing policy for
any matter the department has the authority township, and school district units. Public the first time or implementing changes in an
to investigate. If a witness fails to appear or records pertaining to the delivery of educa- already existing policy shall provide at least 30
refuses to produce the records or objects in tional services by an alternative school in the days’ notice prior to the implementation. The
question, the department may issue a sub- State and kept by a nonprofit or for-profit policy shall be prominently posted and shall
poena to compel the witness to appear, or a entity operating alternative schools were the be given in written form to each employee,
subpoena duces tecum to compel the witness to focus of a legislative amendment. The law as well as to each applicant upon receipt of a
appear and produce a relevant book, record, was expanded to provide parole officers, pros- conditional offer of employment.
document, data, or other object. If a person ecuting and assistant prosecuting attorneys,
refuses to obey a subpoena, the district court, and certain correctional and youth services Immigrant protections. The State Taxpayer
upon application by the department, may is- employees with the same options as peace and Citizen Protection Act of 2007 was en-
Monthly Labor Review • January 2008 2
State Labor Laws, 2007
acted. Under the Act, after July 1, 2008, no inquiry, has reason to believe is most likely to Equal employment opportunity. The State’s
public employer shall enter into a contract for result in actual notice. Revised Statutes regarding discrimination
the physical performance of services within were amended by the addition of various
the State, unless the contractor registers and State Department of Labor. The commissioner prohibited types of discrimination. Employ-
participates in the Federal Status Verification of the State Bureau of Labor and Industries ers are now prohibited from refusing to hire
System to verify the work eligibility of all of its shall adopt rules regarding meal periods for or employ an individual or from barring or
new employees. In addition, after July 1, 2008, employees who serve food or beverages, re- discharging the individual from employment
no contractor or subcontractor who enters ceive tips, and report the tips to the employer. because of the individual’s color or sexual
into a contract with a public employer shall In rules adopted by the commissioner, the orientation. However, discrimination is not
enter into such a contract or subcontract in commissioner shall permit an employee to an unlawful employment practice if it results
connection with the physical performance of waive a meal period. However, an employer from a bona fide occupational qualification
services within the State, unless the contrac- may not coerce an employee into waiving a reasonably necessary to the normal operation
tor or subcontractor registers and participates meal period. In addition to prescribing any of the employer’s business.
in the Federal Status Verification System to other penalty provided by law, the commis-
verify information on all of its new employ- sioner may assess a civil penalty not to exceed Family issues. State law was amended to pro-
ees. Under the law, it shall be a discriminatory $2,000 against an employer that the com- hibit covered employers from reducing the
practice for an employing entity to discharge missioner finds has coerced an employee into amount of an employee’s available family leave
an employee working in the State who is a waiving a meal period in violation of State when the employee is unable to work because
United States citizen or permanent resident statutes. Each violation is a separate and dis- of a disabling compensable injury.
alien while retaining an employee who the tinct offense. In the case of a continuing viola- Employees in the State who take family
employing entity knows, or reasonably should tion, each day’s continuance is a separate and leave are now entitled to use any paid accrued
have known, is an unauthorized alien hired distinct violation. sick leave, in addition to any paid accrued va-
after July 1, 2008, and who is working in the The State commissioner of the Bureau of cation leave, during a period of family leave or
State in a job category which requires skill, ef- Labor and Industries may conduct investi- to use any other paid leave that is offered by
fort, and responsibility equal to that possessed gations, issue subpoenas and subpoenas duces the employer in lieu of vacation leave during
by the discharged employee and which is tecum, administer oaths, obtain evidence, and the period of family leave.
performed under working conditions similar take testimony in all matters relating to the The State’s Revised Statutes relating to
to those of the job category held by the dis- commissioner’s duties when the information family leave were amended. The definition of
charged employee, as defined by 29 U.S.C., sought is relevant to a lawful investigative “family member” was expanded and now in-
Section 206 (d)(1). purpose and reasonable in scope. The com- cludes the grandparent or grandchild of the
missioner shall adopt rules for gathering in- employee. In addition, it is an unlawful prac-
Oregon formation through subpoenas or testimony. If, tice for an employer to deny family leave to
after being served with a subpoena, a person which an eligible employee is entitled under
Agriculture. The commissioner of the State refuses, without reasonable cause, to be exam- the aforesaid statutes. It is also unlawful for an
Bureau of Labor and Industries, or any other ined, to answer any question, or to produce employer to retaliate or in any way discrimi-
person, may bring suit in any court of com- any document or other thing as required by nate against an individual with respect to hir-
petent jurisdiction to enjoin any person from the subpoena, the commissioner may petition ing, tenure, or any other term or condition of
using the services of an unlicensed farm labor the circuit court in the county in which the employment because the individual inquired
contractor or to enjoin any person acting as a investigation is pending for an order directing about the provisions of family leave, submit-
farm labor contractor from violating certain the person to show cause why the person has ted a request for family leave, or invoked any
State statutes or rules promulgated pursuant not complied with the subpoena and should provisions of the State’s Revised Statutes re-
thereto. The court may award costs and dis- not be held in contempt. garding family leave.
bursements, as well as reasonable attorneys’
fees, to the prevailing party. In addition, the Discharge. Employers may not discharge or Human trafficking. The State’s Revised
amount of damages recoverable from a person in any other manner discriminate against an Statutes were amended by the creation of
acting as a farm labor contractor and who vio- employee because (1) the employee has made new provisions relating to the trafficking of
lated certain State statutes is actual damages a wage claim or has discussed, inquired about, persons and involuntary servitude. A person
or a now-increased amount of $2,000, which- or consulted an attorney or agency about a commits the crime of human trafficking, a
ever is greater. wage claim; (2) the employee has caused wage Class B felony, if the person (1) knowingly
The section of the State Revised Statutes proceedings under or related to specific State performs actions or attempts to perform ac-
concerning the issue of service of process on a statutes to be instituted; or (3) the employee tions aimed at recruiting, enticing, harboring,
farmworker camp operator was amended. Dur- has testified or is about testify in any such transporting, providing, or obtaining by any
ing the course of any action arising out of the wage claim proceedings. A violation of the means another person, knowing that the other
activities of a farmworker camp operator who State Revised Statute prohibiting such dis- person will be subjected to involuntary servi-
is operating an unregistered farmworker camp charge or discrimination as a result of wage tude as described by the statute, or (2) ben-
within the State and who is not in the State claim issues is an unlawful employment prac- efits financially or receives something of value
or is otherwise unavailable to accept service of tice. Persons unlawfully discriminated against from participation in a venture that involves
process in the State, the operator may be served in this manner may file a complaint with the acts prohibited by the statute. A person com-
by other means—specifically, by mailing a cer- State commissioner of the Bureau of Labor mits the crime of subjecting another person
tified true copy of the summons and complaint and Industries. Employees aggrieved by such to involuntary servitude in the first degree,
to (1) the State commissioner of the Bureau of a practice also may file a civil action in circuit also a Class B felony, if the person know-
Labor and Industries; (2) the last known ad- court. The court may award compensatory ingly and without lawful authority forces or
dress, if any, of the farmworker camp operator; damages or $200, whichever is greater, and attempts to force the other person to engage
and (3) any other address, the use of which the punitive damages, in addition to the relief au- in services by causing or threatening to cause
plaintiff knows or, on the basis of reasonable thorized by the statutes. death or serious physical injury to a person
2 Monthly Labor Review • January 2008
or by physically restraining or threatening to civil service position. the commissioner may do so.
physically restrain a person. A person com-
mits the crime of subjecting another person Prevailing wage. The State prevailing-wage Wages paid. Persons engaged in a business or
to involuntary servitude in the second degree, law was amended. When the prevailing rates enterprise of any kind in the State may not
a Class C felony, if the person knowingly and of wages required are available electronically issue any order, check, memorandum, or other
without lawful authority forces or attempts to or are accessible on the Internet, the rates may instrument of indebtedness in payment of, or
force the other person to engage in services be incorporated into a project’s specifications as evidence of, indebtedness for wages due an
by (1) abusing or threatening to abuse the law by reference to the electronically accessible or employee, unless the instrument is negotiable
or the legal process; (2) destroying, conceal- Internet-accessible rates and by the provision and payable without discount in cash on de-
ing, removing, confiscating, or possessing an of adequate information about how to access mand at some bank or other established place
actual or purported government identifica- the rates. The commissioner of the State Bu- of business in the county where the employee
tion document of a person; (3) threatening reau of Labor and Industries shall determine lives or works and where sufficient funds are
to report a person to a government agency the site of a public works project in accord- available for payment of the instrument. An
for the purpose of arrest or deportation; (4) ance with the Davis-Bacon Act, as well as employer and employee may agree that the
threatening to collect an unlawful debt; or (5) on the basis of whether workers transport- employer may pay wages through a direct-de-
instilling in the other person a fear that the ing materials and supplies to and from the posit system, automated teller machine card,
actor will withhold from the other person the site are subject to the Act and are entitled to payroll card, or other means of electronic
necessities of life, including, but not limited be paid the prevailing wage. When a public transfer if the employee may (1) make an ini-
to, lodging, food, and clothing. Irrespective of works project is subject to the Davis-Bacon tial withdrawal of the entire amount of net pay
any criminal prosecution or of the result of Act and a public agency fails to include the without cost to the employee and (2) choose
any criminal prosecution, a person injured by State and Federal prevailing rates in the spec- to use another means of payment of wages
a violation of the kind described in this para- ifications for the contract or fails to include that involves no expense to the employee.
graph may bring a civil action for damages information showing which rate is higher The agreement must be in the language that
against a person whose actions are unlawful for workers in each trade or occupation, the the employer principally uses to communi-
under the statute. public agency is liable to each affected worker cate with the employee. To revoke such an
for the worker’s unpaid minimum wages, agreement, except in specific circumstances,
Minimum wage. On the basis of previously including fringe benefits, in an amount that, the employee shall give the employer written
enacted legislation that called for cost-of-liv- for each hour worked, equals the difference notice of its revocation. Unless agreed to oth-
ing increases, the minimum wage in the State between the applicable higher rate and the erwise, the agreement is revoked 30 days after
for calendar-year 2008 was increased to $7.95 lower rate and an additional amount equal the date the notice is received by the employ-
per hour. to the amount of unpaid minimum wages as er. Seasonal farmworkers may provide notice
liquidated damages. The commissioner shall, of revocation of an agreement either orally or
Plant closing. Under a State Department of by rule, establish a fee to be paid by the public in writing, and unless agreed to otherwise, the
Aviation rule, a person responsible for the agency that awards a public works contract. agreement is revoked 10 days after the notice
operation of a public-use airport shall notify Such fee shall be used to pay the costs of (1) is received by the employer.
the department of the planned closure of the conducting surveys to determine the prevail- If an employer has received notice that an
airport at least 180 days before its permanent ing rates of wages, (2) administering and employee has not been paid the full amount
closure. providing investigation under State statutes, the employee is owed on a regular payday and
and (3) providing educational programs on there is no dispute between the employer and
Preference. Public employers shall grant a public contracting law under the State Public the employee regarding the amount of the
preference to veterans (including disabled Contracting Code. Fees shall be set at 0.1 unpaid wages, then (1) if the unpaid amount
veterans) who successfully complete an ini- percent of the contract price. However, in no is less than 5 percent of the employee’s gross
tial application screening or an application event may the fees be more than $5,000 or wages due on the regular payday, the employer
examination or who successfully complete a less than $100. shall pay the employee the unpaid amount not
civil service test the employer administers to The State’s Revised Statutes were amend- later than the next regular payday; or (2) if the
establish eligibility for a vacant civil service ed by the addition of three sections to the unpaid amount is 5 percent or more of the em-
position. Different amounts of preference discussion of public contracts. Upon the re- ployee’s gross wages due on the regular payday,
points are to be added by the employer to quest of a public agency or other interested the employer shall pay the employee the un-
the veterans’ scores. Public employers shall person, the State commissioner of the Bureau paid amount within 3 days after the employer
appoint an otherwise qualified veteran (who of Labor and Industries shall now make a de- has received notice of the unpaid amount, ex-
may be a disabled veteran) to a vacant civil termination about whether a project or pro- cluding Saturdays, Sundays, and holidays.
service position if the results of the veteran’s posed project is or would be a public work on When an employer deducts an amount
application examination, combined with the which payment of the prevailing wage is or from an employee’s wages as required or au-
preference points awarded such individuals, would be required under State statute. The re- thorized by law or agreement, the employer
are equal to or higher than the results of an quester shall provide the commissioner with shall pay the amount deducted to the ap-
application examination for a nonveteran. If the information necessary to make the deter- propriate recipient as required by the law or
a public employer does not appoint a veteran mination. The commissioner shall make the agreement. The employer shall pay the amount
(who may be a disabled veteran) to a vacant determination within 60 days after receiving deducted within the time required by the law
civil service position, then, upon written re- the request or 60 days after the requester has or the agreement or, if the time for payment is
quest of the veteran, the employer shall pro- provided the commissioner with the infor- not specified by the law or agreement, within
vide, in writing, the employer’s reasons for his mation necessary to enable the commissioner 7 days after the date the wages from which
or her decision. The employer may base a deci- to make the determination, whichever is later. the deductions are made are due. Failure to
sion not to appoint the veteran (who may be a The commissioner may take additional time pay the amount as required constitutes an
disabled veteran) solely on the veteran’s merits to make the determination if the commis- unlawful decision, which may be penalized
or qualifications with respect to the vacant sioner and the requester mutually agree that under penalty provided by law, where the
Monthly Labor Review • January 2008 2
State Labor Laws, 2007
State commissioner of the Bureau of Labor the criminal laws of this State, another State, employee’s minor child or dependent; (3) to
and Industries may assess a civil penalty not to or the United States; confidential reports from obtain, or to assist a minor child or dependent
exceed $1,000 against any person who com- previous employers; or records maintained in in obtaining, counseling from a licensed men-
mits such an act. compliance with State statutes. Upon receipt tal health professional for the effects related
of a request from an employee, the employer to an experience of domestic violence, sexual
Worker privacy. Confidential employment in- shall provide, within 45 days, a reasonable assault, or stalking; (4) to obtain services from
formation secured by the State Employment opportunity for the employee to inspect the a victim services provider for the eligible em-
Department may be provided to the State employee’s personal records that have been ployee or the employee’s minor child or de-
Department of Transportation to assist that used to determine the employee’s qualifica- pendent; and (5) to relocate or to take steps
department in carrying out its duties relating tion for employment, promotion, additional to secure an existing home in order to ensure
to the collection of delinquent and liquidated compensation, termination, or some other the health and safety of the eligible employee
debts, including taxes, due under the State’s disciplinary action. Employers shall keep a or the employee’s minor child or dependent.
Revised Statutes and the State Vehicle Code. terminated employee’s personnel records for A covered employer may limit the amount of
The information provided may include names not less than 60 days. Upon an employee’s leave an eligible employee takes for the afore-
and addresses of employers and employees, as request, copies must be furnished within 45 said activities if the employee’s leave creates
well as payroll data. The information provided days. If the records are not readily available, an undue hardship on the employer’s business.
is confidential and may not be released by the the employer and the employee may agree to It is unlawful for a covered employer to deny
State Department of Transportation in any extend the time within which the employer leave to an eligible employee or to discharge,
manner that would identify any employing must provide the records to the employee. threaten to discharge, demote, suspend, or in
unit or employee, except to the extent neces- Any employee returning to work after a any manner discriminate or retaliate against
sary to carry out the department’s duties or pregnancy leave must provide reasonable no- an employee with regard to promotion, com-
in auditing or reviewing any report or return tice to the employer that the employee intends pensation, or other terms, conditions, or privi-
required to permitted to be filed under the to express milk for a child who is 18 months leges of employment because the employee
revenue and tax laws administered by the of age or younger. Unless otherwise agreed to takes such leave.
department. The information may not be dis- by the employer and employee, the employer
closed to any private collection agency. shall provide the employee with a 30-minute Pennsylvania
The worker privacy issue regarding school rest period to express milk during each 4-hour
employees has been amended under the State’s work period or during the major part of a 4- Minimum wage. As a result of legislation en-
Revised Statutes. If a former school employee hour work period, to be taken by the employee acted in previous years, the minimum wage in
is convicted of a crime under specific statutes, approximately in the middle of the work peri- the State was increased to $7.15 per hour on
the education provider that was the employer od. The employee shall, if feasible, take the rest July 1, 2007.
of the former employee when the crime was periods to express milk at the same time as that
committed shall disclose the disciplinary rec- provided to other employees for their rest or Rhode Island
ords of the former employee to any person meal periods. When an employer’s contribu-
upon request. tion to the employee’s health insurance is in- Hours worked. In order to pursue the health,
The State’s Revised Statutes regarding fluenced by the number of hours the employee efficiency, and general well-being of employ-
mediation were amended. If the only parties works, the employer shall treat any unpaid rest ees, as well as the health and general well-be-
to mediation are public bodies, then com- periods used by the employee to express milk ing of the persons to whom those employees
munications or agreements made during the as paid work time for the purpose of measur- provide services, the State declared a public
mediation are not confidential, except to the ing the number of hours the employee works. policy that established a maximum workday
extent that those communications or agree- An employer is not required to provide rest for certain hourly-wage employees beyond
ments are exempt from disclosure. Mediation periods as a result of this legislation if doing which the employees cannot be required to
of workplace interpersonal disputes between so would impose a hardship on the employer’s perform overtime work. Health care facilities
employees of a public body is not subject to business operation. This employee entitlement may not require employees to work overtime
disclosure under the statute and is therefore applies only to employers who employ 25 or in excess of an agreed-upon, predetermined
confidential. If two or more public bodies more employees in the State during each of scheduled work shift of 8, 10, or 12 hours,
are parties to a mediation in which a private the calendar workweeks of the year in which except in unforeseeable circumstances. In
person is also a party, then mediation com- the rest periods are to be taken or of the year no case shall a health care facility require an
munications are not confidential if the poli- immediately preceding the year in which the employee to work in excess of 12 consecutive
cies governing confidentiality of mediation rest periods are to be taken. hours. The refusal of any employee to accept
communications for at least one of the public such overtime work shall not be grounds for
bodies provide that those communications Workplace violence. Employers covered by discrimination, dismissal, discharge, or any
are not confidential. Finally, if two or more State law shall allow an employee to take other penalty or employment decision adverse
public bodies are parties to a mediation in reasonable leave from employment for any of to the employee. Voluntary overtime in excess
which a private person is also a party, then any the following reasons: (1) to seek legal or law of these limitations is not to be construed as
communications made during the mediation enforcement assistance or remedies to ensure prohibited.
are not confidential if the policies governing the health and safety of the employee or the
confidentiality for at least one of the public employee’s minor child or dependent, includ- Human trafficking. The State General Law
bodies provide that those communications are ing preparing for and participating in protec- titled “Criminal Offenses” added a new chap-
not confidential. tive order proceedings or other civil or criminal ter titled “Trafficking of Persons and Involun-
The State’s Revised Statutes relating to legal proceedings related to domestic violence, tary Servitude.” Language within the chapter
personnel records were amended. Personnel sexual assault, or stalking; (2) to seek medi- established and defined both the trafficking of
records no longer include records relating to cal treatment for, or to recover from, injuries persons and involuntary servitude as criminal
the conviction, arrest, or investigation of indi- caused by domestic violence or sexual assault offenses related to the activities of intimida-
viduals for conduct constituting a violation of to, or stalking of, the eligible employee or the tion; forced labor; commercial sexual activity;
2 Monthly Labor Review • January 2008
and knowingly destroying, concealing, re- necessary adjustments to the prevailing rate station constructed after June 26, 2007, is
moving, confiscating, or possessing any actual of wages and to the payment or contributions encouraged to have separate restroom facili-
or purported passport or other immigration paid or payable on behalf of each employee. ties, showers, and locker rooms for men and
document. Fines and penalties for conviction women. Each municipal or county fire depart-
of involuntary servitude may range from 20 South Dakota ment and each volunteer fire department or
years’ imprisonment and $20,000 in fines to company are urged to develop plans that, to
40 years’ imprisonment and $40,000 in fines, Minimum wage. The State minimum-wage the greatest extent possible, will create gen-
depending upon the age of the victim(s). Hu- law was amended. On the effective date, der-friendly conditions in existing facilities.
man trafficking may result in penalties of 20 July 24, 2007, of the increase in the Federal Existing facilities that cannot be upgraded to
years’ imprisonment and $20,000 in fines. minimum wage under the Federal Fair Labor gender-friendly stations should be made gen-
Standards Act, the State minimum wage was der friendly to the greatest extent possible.
Independent contractor. The section of the increased to $5.85 per hour for every employ-
State General Laws entitled “Causes of Ac- er. Twelve months later, the State minimum Immigrant protections. No person in the State
tion” was amended. A section dealing with wage will be increased to $6.55 per hour, and is permitted to accept an individual taxpayer
misclassification of employees was added to effective 12 months after that, the State mini- identification number as a form of identifica-
the laws. Any person, firm, or corporation mum wage will be increased to $7.25 per hour. tion. Any person, including any contractor, in
that suffers damages as a result of a competi- Employers in violation of the requirement for the State who is presented with an individual
tive bid for a contract not being accepted due the payment of these minimum wages are taxpayer identification number by a potential
to another person, firm, or corporation know- guilty of a Class 2 misdemeanor. employee or subcontractor as a form of iden-
ingly misclassifying employees as independ- tification or to prove immigration status shall
ent subcontractors may bring an action for Workplace security. Each person hired in any reject such number and request the lawful res-
damages in the appropriate district or supe- capacity by the Division of Banking of the ident verification information that the person
rior court. For the purposes of these actions, State Department of Revenue and Regula- is required to obtain pursuant to Federal law.
an employee’s status shall be determined by tion shall agree to submit to a background The phrase “lawful resident verification infor-
the applicable provisions of the appropriate investigation by means of fingerprint checks mation” is defined as the documentation re-
Internal Revenue Code of 1986 or any subse- performed by the State Division of Crimi- quired by the U.S. Department of Homeland
quent corresponding Internal Revenue Code nal Investigation and the Federal Bureau of Security in completing the employment eligi-
of the United States, as amended from time Investigation. Completed fingerprint cards bility verification form commonly referred to
to time. shall be submitted to the division before the as the Federal “Form I-9.”
prospective new employee enters into service.
Overtime. State law requires that work per- If no disqualifying record is identified at the Worker privacy. The State Code Annotated
formed by employees on Sundays and holidays State level, the fingerprints shall be forwarded was amended by treating additional types
be paid for at a rate at least time-and-one-half by the division to the Federal Bureau of In- of personal information as confidential. The
the normal rate for the work, provided that an vestigation for a national criminal history rec- residential address, as well as the personal
employee’s refusing to work on any Sunday ord check. Any person whose employment is telephone and cell phone numbers, of any
or holiday enumerated by State statute is not contingent on satisfying this requirement may State, county, municipal, or other public law
grounds for discharge or meting out any other enter into service on a temporary basis pend- enforcement officer shall now be treated as
penalty upon the employee. Any manufac- ing receipt of the results of the background confidential and not open for inspection by
turer that operates for 7 continuous days per investigation. The division may, without liabil- members of the public.
week is exempt from this requirement. Thus, ity, withdraw its offer of employment or ter-
any and all employees of a chauffer-driven minate the temporary employment without Texas
limousine or taxicab company that operates notice if the report reveals that the person has
7 continuous days per week, 24 hours per day, been convicted of any financial crime or any Child labor. The State Child Labor Code
are newly listed as exempt from the State-re- crime that otherwise reveals circumstances does not apply to the employment of a mi-
quired time-and-one-half provisions. In ad- which reasonably suggest that the person nor 16 years of age or older who is engaged
dition, any car rental company that operates a should not be employed by the division. in the direct sale of newspapers to the general
car rental agency at T. F. Green Airport and is public.
required, pursuant to its lease agreement with Tennessee
the State Airport Corporation, to operate Prevailing wage. Any contract for a public
on Sundays and/or holidays is exempt from Drug and alcohol testing. For-hire motor work project awarded by a political subdivi-
overtime provisions for Sunday and holiday carriers providing passenger transportation sion of the State shall follow the general pre-
work with respect to work performed at that service in a motor vehicle or motor vehicles vailing rate of per diem wages in the locality
airport location. designed or constructed to accommodate and in which the public work is to be performed,
transport eight or more passengers, exclusive for each craft or type of worker needed to
Prevailing wage. Contractors in the State of the driver, shall conduct a program of man- execute the contract, and shall also follow
who are awarded a public works contract are datory random drug testing for the operators the prevailing rate for legal holiday and over-
now required to contact the Department of of their motor vehicles in accordance with time work. Those rates are established by (1)
Labor and Training on or before July 1 of each regulations promulgated by the U.S. Depart- conducting a survey of the wages received by
year for the duration of the contract, in order ment of Transportation. classes of workers employed on projects of a
to ascertain the prevailing rate of wages on character similar to the contract work in the
an hourly basis and the amount of payment Equal employment opportunity. Most fire sta- political subdivision of the State in which the
or contributions paid or payable on behalf of tions in use today were planned and built with public work is to be performed or (2) using
each mechanic, laborer, or worker perform- a single-sex workforce in mind. Many of these the prevailing wage rate as determined by the
ing the work contracted to be done each year. buildings are now being used by a workforce U.S. Department of Labor in accordance with
Every July 1, the contractor shall make any that includes both men and women. Any fire the Davis-Bacon Act (40 U.S.C. Section 27a
Monthly Labor Review • January 2008 27
State Labor Laws, 2007
et seq.) and its subsequent amendments. There the officer or employee to another position or sales representative, and the order is paid for
no longer exists a State requirement that the (2) refuse to assign the officer or employee to by a customer. When the employer fails to pay
prevailing wage rate must have been deter- the position in question that requires working the commission, the sales representative may
mined by a survey conducted no more than 3 with a Federal Agency on national security bring a civil action in a court of competent ju-
years earlier by the Department of Labor. issues. risdiction against a principal for failure by the
principal to comply with the provisions of the
Utah agreement. If a principal is found liable, the
Whistleblower. A school district grievance
principal is liable for 3 times the amount of
policy must permit a school district employee
Inmate labor. When an inmate is incarcerated the unpaid commission, plus reasonable attor-
to report a grievance against a supervisor that
in a county jail or in a detention facility, the ney fees and court costs, minus monies owed
alleges a violation of the law in the workplace
custodial authority may allow the inmate to by the sales representative to the principal.
or the supervisor’s unlawful harassment of the
work outside of the jail or facility as part of a
employee to a supervisor other than the su-
supervised work detail, to seek employment, Workplace security. A concurrent resolution
pervisor against whom the employee intends
or to attend an educational institution. This was passed by the legislature and signed by the
to report the grievance.
proviso is contingent upon whether or not Governor urging the U.S. Congress to pass
the offense the inmate has committed (1) is legislation to resolve Federal identity theft
Worker privacy. Two categories of employ- an offense for which the State prohibits the and fraud issues. The resolution urged that
ees were added to the group of employees inmate’s release or (2) is for a misdemeanor the legislation include increased and effective
about whom information such as the home and the sentencing judge has not entered an verification requirements by companies, ac-
address, home telephone number, or Social order prohibiting the inmate’s release. Any companied by the tools and resources neces-
Security number of the person or informa- inmate so employed may be released from sary to verify whether a Social Security num-
tion that reveals whether the person has fam- jail during those hours which the custodial ber is fraudulent, and also include increased
ily members is not required to be placed into authority deems reasonable and necessary to penalties for individuals who intentionally use
the public domain. The categories added are accomplish the objectives of the employment, fraudulent Social Security numbers to obtain
those officers and other employees who con- the seeking of employment, attendance at an employment, to avoid child support obliga-
duct presentence investigations, supervise and educational institution, the obtaining of nec- tions, or for other personal gain. In addition,
rehabilitate defendants placed on community essary medical treatment, or any other reason- the resolution urged that the legislation in-
supervision, and enforce the conditions of able purpose. All prisoners so released are in clude increased penalties on companies that
community supervision and staff community the custody of the custodial authority and are repeatedly report wages of employees with
corrections facilities. subject to being returned to jail at any time. fraudulent Social Security numbers.
Peace officers of the State Department of The judge may order that the prisoner pay
Public Safety are now entitled to the same monies earned from employment during the Vermont
protection provided to peace officers who op- jail term to those persons he or she is legally
erate under a civil service system of the State responsible for supporting and may order the Minimum wage. On account of previously
Local Government Code, which renders the inmate to retain sufficient money to pay the enacted legislation, the State minimum wage
personnel records of the civil-service peace costs of transportation, meals, and other inci- was increased to $7.68 per hour on January
officers confidential, except for information dental and necessary expenses related to his or 1, 2008.
relating to commendations, confirmed com- her special release. An employer in a hotel, motel, tourist at-
plaints, disciplinary actions, and details about traction, or restaurant industry shall not em-
basic employment. In addition, a release of ex- Wages paid. The State Sales Representative ploy a service or tipped employee at a basic
empted information does not waive the right Commission Act was amended to indicate wage rate less than $3.65 an hour, and begin-
to assert in the future that the information is that if a business relationship between a prin- ning January 1, 2008, and on each January 1
excepted from required disclosure. cipal and a sales representative terminates, thereafter, this basic tip rate shall be increased
The State Workforce Commission shall re- the principal shall pay the sales representative by the same percentage as the minimum-wage
move the home address of a judge or justice all commissions due within 30 days after the rate. A “service or tipped employee” is defined
from a financial statement filed under State day on which the termination is effective and as an employee of a hotel, motel, tourist place,
requirements before permitting a member of within 14 days after the day on which a com- or restaurant who customarily and regularly
the public to view the statement or providing mission becomes due if said commission is receives more than $120 per month in tips for
a copy of the statement to a member of the due after the day on which the termination is direct and personal service.
public. effective. The acceptance by a sales represent-
ative of a partial commission payment from Time off. Upon request, any duly qualified
Workplace security. The State Department of the principal does not constitute a release as to member of the “Reserve components of the
Public Safety may require a commissioned or the balance of any commission that the sales Armed Forces,” of the Ready Reserve, or of an
noncommissioned officer or employee of the representative claims is due because of the organized unit of the National Guard, shall
department to submit to the administration of business relationship. If a principal makes a be entitled to leaves of absence for a total of
a polygraph examination administered by the revocable offer of a commission to a sales rep- 15 days in any calendar year for the purpose
polygraph examiner if (1) the officer or em- resentative and the principal revokes the offer of engaging in military drill, military training,
ployee is assigned to a position that requires of commission, then the sales representative is or some other temporary duty under military
him or her to work with a Federal Agency on entitled to the commission agreed upon under authority. A leave of absence shall be with or
national security issues and (2) the Federal the business relationship if (1) the sales repre- without pay, as determined by the employer.
Agency requires that the officer or employee sentative establishes that the revocation is for Upon completion of the military drill, train-
submit to a polygraph examination. If an of- the purpose of avoiding payment of the com- ing, or other temporary duty under military
ficer of the department does not submit to mission or (2) the revocation occurs after the authority, a permanent employee shall be re-
a polygraph examination as required by the principal obtains an order for the principal’s instated in that same position, with the same
department, the department may (1) assign product or service through the efforts of the status, pay, and seniority, including seniority
28 Monthly Labor Review • January 2008
that accrued during the period of absence. exclusion. The policy encourages the use of al- formation was amended. An additional entity
ternative work locations that are separate from is now entitled to receive such information
Virginia the agency’s central workplace. The policy also either directly or through an intermediary.
promotes the use of Commonwealth informa- The State Department of Medical Assistance
Child labor. The State Code relating to child tion technology assets where feasible, but may Services or its designee is entitled to receive
labor was amended to specify that no child allow eligible employees who telecommute to criminal history record information in the
under 18 years of age shall be employed, per- use computers, computing devices, or related circumstances described for the purpose of
mitted, or suffered to work in any capacity electronic equipment not owned or leased by screening individuals who, through contracts,
in the manufacturing of paints, colors, white the Commonwealth. This aspect of the policy subcontracts, or direct employment, volunteer,
lead, brick tile, or kindred products, or in any requires technical and economic feasibility, apply for, are offered, or have accepted a posi-
place where goods of alcoholic content are and the telecommuting sites must meet infor- tion related to the provision of transportation
manufactured, bottled, or sold for consump- mation security standards established by the services to enrollees in the Medicaid Program,
tion on the premises, except farm wineries. In State Information Technologies Agency or the Family Access to Medical Insurance Se-
these instances, the alcoholic beverages (con- must receive an exception from the State chief curity Program, or any other program admin-
taining 18 percent or less alcohol by volume) information officer of the Commonwealth or istered by the State Department of Medical
may be sold for on-premises consumption his or her designee. Assistance Services.
and in closed containers for off-premises con- It shall be unlawful for any person to
sumption; however, no child employed at the Time off. The State Code regarding reem- publish the name or photograph of a law
farm winery shall serve or dispense alcoholic ployment rights for members of the State enforcement officer, along with identifying
beverages. National Guard, the State Defense Force, and information, including the officer’s primary
The State Code was amended to stipulate the Naval Militia called to State active duty or residential address, with the intent to uti-
that any person who employs, procures, or, military duty pursuant to Title 32 of the U.S. lize that information in order to coerce, in-
having under his control, permits a child to Code was amended. Upon honorable release timidate, or harass the officer. A person who
be employed, or who issues an employment from State active duty or military duty pursu- violates this amended section of the State
certificate that results in the child being seri- ant to Title 32 of the U.S. Code, a member Code is guilty of a Class 1 misdemeanor. If
ously injured or dying in the course of that of any of the aforementioned bodies shall the violator knew or had reason to know that
employment, shall be subject to a civil penalty make written application to his or her previ- the person about whom the information was
not to exceed $10,000 for each violation. The ous employer within 14 days of release from being printed was a law enforcement officer,
determination by the State commissioner of active duty or from hospitalization following then the violator shall be guilty of a Class 6
labor and industry shall be final, unless, within release. The employee’s restoration rights to a felony with a mandatory minimum term of
15 days after receipt of such notice, the person previously held position, to a position of like confinement of 6 months.
charged with the violation notifies the com- seniority, status, and pay, or to a comparable
missioner by certified mail that he or she in- vacant position shall not apply when the cu- Washington
tends to contest the proposed penalty before mulative length of the absence and of all
the appropriate general district court. previous absences from a position of employ- Child labor. The State Revised Code asserts
ment with the employer in question exceeds that every person who shall employ, and ev-
Human trafficking. The portion of the State 5 years by reason of service in the uniformed ery parent, guardian, or other person having
Code relating to the extortion of immigrants services. the care, custody, or control of such child,
was amended by the addition of a type of ac- Every employer shall allow an employee who shall permit to be employed, by another,
tion to a previous listing of prohibited actions who is a victim of a crime to leave work to any child under 14 years of age at any labor
and by a definition of the seriousness of such be present at all criminal proceedings relat- whatever, in or in connection with any store,
an action. Any person who threatens another ing to the crime. The employee must have shop, factory, mine, or any inside employment
person with injury, accuses another person provided the employer with a copy of the not connected with farmwork or housework,
of an offense, or confiscates, withholds, or form furnished to the employee by the law without the written permit thereto of a judge
threatens to withhold any actual or purported enforcement agency and, if applicable, with a of a superior court of the county wherein such
passport, immigration document, or other copy of the notice of each scheduled criminal child may live shall be guilty of a misdemean-
government identification document, and proceeding, such copy also provided to the or. This prohibition does not apply to youth
thereby extorts money, property, or pecuniary employee-victim. An employer may limit the soccer referees who have been certified by a
benefit or any note, bond, or other evidence of leave granted if the employee’s leave creates national referee association.
debt from another person, is guilty of a Class an undue hardship on the employer’s business.
5 felony. An employer shall not dismiss an employee Equal employment opportunity. The State
who is a victim of a crime because the em- Revised Code was amended to direct the
Minimum wage. The State Minimum Wage ployee exercises the right to leave work. The director of the State Department of Person-
Act was amended through a redefinition of the employer is not required to compensate an nel to adopt rules establishing guidelines for
term “employee.” Persons who have reached employee for the time off. Finally, an employer policies, procedures, and mandatory training
their 65th birthday are no longer automati- shall not refuse to hire or employ, shall not programs on sexual harassment for State em-
cally considered nonemployees. bar or discharge from employment, and shall ployees. The amended Code also (1) directed
not discriminate against an individual in com- State agencies to adopt the rules pertaining
Offsite work. The State secretary of admin- pensation or any other terms of employment to compliance with the department’s policies
istration, in conjunction with the heads of because the individual leaves work to attend and procedures and (2) established reporting
each State agency, established a telecommut- a criminal proceeding involving an employee- requirements for State agencies regarding such
ing and alternative-work policy outlining the victim. compliance. All agencies and units of State
types of employees eligible, the broad catego- government shall develop and disseminate,
ries of positions determined to be ineligible Worker privacy. The State Code concerned among all agency employees and contractors,
for telecommuting, and the justifications for with the release of criminal history record in- a policy that (1) defines and prohibits sexual
Monthly Labor Review • January 2008 2
State Labor Laws, 2007
harassment in the workplace, (2) includes either employment or continued employment. may withdraw money from his or her manda-
procedures that describe how the agency will This restriction does not apply if the person tory savings for the purpose of preparing for
address concerns of employees who are affect- is applying for employment with any law en- reentry into society. The participating inmate
ed by sexual harassment in the workplace, (3) forcement agency or with the juvenile court shall reimburse the Authority toward the
identifies appropriate sanctions and discipli- services agency or if the person is returning to cost of his or her incarceration in accordance
nary actions, and (4) complies with guidelines work after a break of more than 24 consecu- with the inmate’s ability to pay, the nature
adopted by the director. The agencies shall also tive months in service as a fully commissioned and extent of the inmate’s responsibilities
(1) respond promptly and effectively to sexual law enforcement officer. Nor does the restric- to dependents, and any other court-ordered
harassment concerns, (2) conduct training tion apply to either the initial application for financial obligations.
and education for all employees in order to employment or the continued employment
prevent and eliminate sexual harassment in of persons who manufacture, distribute, or Overtime. The State Code was amended
the organization, (3) inform employees of dispense controlled substances or who hold in order to modify the Nurse Overtime and
their right to file a complaint with the State sensitive positions directly involving national Patient Safety Act. Hospitals are now re-
human rights commission, and (4) report to security. Psychological tests are permitted. quired to designate an anonymous process
the director of personnel regarding their com- for patients and nurses to register complaints
pliance with the requirements. West Virginia related to safety. In addition, hospitals are
required to post, in one or more conspicuous
Family issues. Effective October 1, 2009, a Immigrant protections. Effective January 1, places where notices to employee nurses are
new family leave insurance or partial wage 2008, no wages or remuneration of $600 or customarily posted, a notice, in a form ap-
replacement program is established by the more per annum for services paid to an un- proved by the commissioner of labor, setting
State. An individual employee is eligible to authorized worker may be claimed and al- forth nurses’ rights under the amended Act.
receive benefits if he or she has worked 680 lowed as a deductible business expense for The State commissioner of labor is to keep
hours in employment covered by unemploy- State income tax purposes by a taxpayer if the each complaint anonymous until he or she
ment compensation during the first four of employer has been convicted under this article finds that the complaint has merit. The com-
the last five calendar quarters or during the for employing, hiring, recruiting, or referring missioner shall establish a process for notify-
last four calendar quarters completed before the unauthorized worker. Under State law, the ing a hospital of a complaint and shall also
beginning family leave. An employer or a self- commissioner of labor shall notify the State establish an appeals procedure and a notifica-
employed person not mandatorily covered Department of Revenue of any conviction of tion procedure, including any signs that must
may elect coverage. The amount of the weekly an employer regarding the aforementioned be posted by the facility.
benefit is $250 for a maximum of 5 weeks for activities, and the department is to take the
an individual who was regularly working 35 appropriate action against the taxpayer. If, Plant closing. Any hospital, any extended-
or more hours per week and is on leave for the upon examination of the record or records care facility operated in connection with a
same number of hours. Benefits are prorated of convictions, the commissioner determines hospital, any ambulatory health care facil-
for an individual who was regularly working that an employer has been convicted of a third ity, or any ambulatory surgical facility, either
fewer than 35 hours per week and is on leave or subsequent offense under the State Code, freestanding or operated in connection with a
for fewer hours per week than he or she was the commissioner may enter an order to (1) hospital, that intends to terminate operations
regularly working. Individuals are entitled to permanently revoke, or file an action to re- shall provide at least 3 weeks’ notice of such
be restored to a position of employment in voke, any license held by the employer or (2) intent to the public prior to its termination
the same manner that an employee entitled suspend, or move for a suspension, for a speci- of operations. In addition, at least 3 weeks
to leave under the State Family Leave Law is fied time, of any license held by the employer. prior to the date of termination of services,
restored to a position of employment. How- the hospital or health care facility shall place
ever, to be reinstated, the individual must have Inmate labor. The executive director of the a Class III legal advertisement in all qualified
worked for an employer with more than 25 State Regional Jail and Correctional Facility newspapers of general circulation where the
employees for a total of at least 12 months and Authority is authorized to establish guidelines operation is geographically located.
for at least 1,250 hours over the 12 months and qualifications to allow inmates at each
prior to the reinstatement. regional jail facility to be gainfully employed Wisconsin
with local businesses and governmental en-
Prevailing wage. As amended, the Revised tities in a work program and to establish an Prevailing wage. On January 1, 2007, the
Code of the State now authorizes port dis- inmate trustee account. The executive director prevailing-wage threshold amount for cover-
tricts, either individually or jointly with any of the State Division of Corrections or a des- age under the State prevailing-wage laws for
other municipality, person, or any combina- ignee thereof shall determine the eligibility State and municipal contracts was changed
tion thereof, to acquire and operate tour- of each inmate for participation in the work administratively from $209,000 to $216,000
ism-related facilities. Such port district, or program and shall consent to the participa- for contracts in which more than one trade
such municipality or other entity involved in tion of eligible inmates. An inmate convicted is involved and from $43,000 to $44,000 for
a joint venture or project with a port district, of a sexual offense or a violent felony is dis- contracts in which a single trade is involved.
shall comply with the provisions of Chapter qualified from the program. The administra- On January 1, 2008, these amounts were
39.12 of the Revised Code of the State—that tor or designee of each regional jail facility changed administratively to $221,000 for
is, those dealing with prevailing-wage require- shall receive and take charge of all money contracts in which more than one trade is in-
ments. earned by the inmates as compensation for volved and $45,000 for contracts in which a
work performed, shall credit the money and single trade is involved.
Worker privacy. It shall be unlawful for any earnings to the entitled inmate, and shall keep
person, firm, or corporation to require, either an accurate account of all monies received. At Wyoming
directly or indirectly, that any employee or least 10 percent of all monies earned during
prospective employee take or be subject to any the inmate’s incarceration shall be paid to the Equal employment opportunity. The State
lie detector or similar test as a condition of inmate at the time of release, and the inmate statutes regarding discriminatory or unfair
0 Monthly Labor Review • January 2008
employment practices were amended. It is a specified by State statutes and for the period Puerto Rico
discriminatory or unfair employment practice applicable to the contract being awarded, only
for an employer to refuse to hire, to discharge, to those prospective contractors who partici- Worker privacy. Legislation was enacted that
to promote or demote, or to discriminate pated, as certified by the department, in the prohibits employers of private enterprises or
against a qualified disabled person, or any per- department’s wage survey. All others are pre- public corporations of the Commonwealth
sons otherwise qualified, due to age, sex, race, cluded from bidding. from showing or displaying the Social Secu-
creed, color, national origin or ancestry, and rity number of an employee on the employee’s
(the newest category) pregnancy in matters Workplace security. The State Department of identification card, regardless of the nature
of compensation or in the terms, conditions, Transportation shall not issue, renew, upgrade, of the employee’s position or appointment.
or privileges of employment. This statutory or transfer a hazardous-materials endorse- In addition, the number may not be shown
amendment became effective July 1, 2007. ment for a commercial driver’s license to any or displayed in a place visible to the general
person, unless the U.S. Transportation Secu- public or in a document of general circulation.
Prevailing wage. The prevailing-wage thresh- rity Administration has completed a security Finally, the number may not be included in
old for State construction contracts was in- threat assessment of the person seeking the any personnel directory or in any similar list
creased to $100,000 for the entire State, with endorsement and determined that the person made available to persons who have no need
the exception of any area defined as a metro- does not pose a security risk warranting denial or authority to access such data.
politan statistical area pursuant to 44 U.S.C. of the endorsement.
3504(e)(3)and 31 U.S.C. 1104(d). Upon a The State Statutes were amended to require
complaint of a violation of the prevailing- that criminal history record information shall Notes
wage act, or upon a reasonable suspicion that now be disseminated by criminal justice agen-
a violation of this act has occurred, the direc- cies in the State, either directly or through an 1
For a listing of the current State minimum-
tor of the State Department of Employment intermediary, to the State Military Department. wage requirements that were effective on January
shall investigate and shall institute actions The department is now entitled to receive such 1, 2008, visit www.dol.gov/esa/minwage/america.
htm.
for penalties for proven violations that he or information if, as a condition for employment,
she considers intentional and willful in na- the department requires prospective employees 2
For a definition of “Housing with Services
ture. When reviewing bids for public works or volunteers, or both, to submit to fingerprint- Establishment,” visit http://www.state.mn.us/
contracts, the public body reviewing the bids ing in order to obtain State and national criminal license/content.do?mode=license&LicenseID
shall award a bid preference, in the percentage history record information. =4791.
Monthly Labor Review • January 2008 1
Related docs
