"State labor legislation enacted in 2005"
State Labor Laws, 2005 State labor legislation enacted in 2005 Minimum wage, child labor, drug and alcohol testing, equal employment opportunity, human trafficking, overtime, plant closings, prevailing wage, time off, wages paid, and worker privacy were among the most active categories of labor legislation enacted or amended during the year John J. Fitzpatrick, Jr. A greater volume of labor legislation, labor, drug and alcohol testing, equal employ- concentrated in more than 30 tracked ment opportunity, human trafficking (an area of categories, was enacted in 2005, com- increasing interest), the minimum wage, the pared with the volume enacted in recent years.1 prevailing wage, time off, wages paid, and worker Forty-eight of the 50 States, along with the District privacy. of Columbia, enacted labor legislation of conse- At the present time, six States3 do not have a quence in the categories tracked. Iowa and Massa- minimum-wage requirement. As of January 1, chusetts were the only two States that had not done 2006, minimum-wage rates were higher than the so at the time this article was written. Arkansas, Federal minimum-wage standard in 17 States and California, Illinois, Maine, Montana, New York, the District of Columbia. Of the 44 States with Oregon, Rhode Island, Texas, Virginia, and Wash- minimum-wage laws, only two (Kansas and Ohio) ington all enacted above-average numbers of labor- have required rates lower than the Federal rate of related laws.2 $5.15 per hour. The labor legislation that was enacted by the The next section briefly summarizes, by category, States addressed issues in a significant number of a number of the legislative activities that resulted in employment standards areas and included many laws enacted or amended by the individual State important measures. Among the areas addressed legislatures during the past year. Following this were agriculture, child labor, State departments of summary are more comprehensive descriptions of labor, the discharge of employees, drug and alcohol each State’s legislative activities during the course testing, equal employment opportunity, employ- of the year. ment agencies, employer leasing, family issues, ge- netic testing, handicapped workers, hours worked, Minimum wages. The issue of minimum wages human trafficking, immigrant protections, inmate was a “hot-button” issue in the States this year. labor, living wages, the minimum wage, offsite work, More than 140 minimum-wage bills were introduced overtime, plant closings, prevailing wages, the right in at least 42 States and the District of Columbia. In John J. Fitzpatrick, Jr., to work, time off, unfair labor practices, wages paid, Connecticut, Florida, Hawaii, Minnesota, New is a State Standards whistleblowers, worker privacy, and workplace Jersey, Oregon, Vermont, Wisconsin, and the Advisor in the Division of External Affairs, security. This article does not cover legislation on District of Columbia, State minimum-wage rates Wage and Hour occupational safety and health, employment and increased either because of new legislation that Division, Employment training, labor relations, employee background was enacted, because of laws that were previously Standards checks (except for those dealing with security enacted and that contained scheduled increases, Administration, U.S. Department of Labor. issues), economic security, and local living-wage or because of previously passed ballot initiatives. E-mail: ordinances. Areas that appeared the most in new Georgia enacted legislation placing limits on local Fitzpatrickjr.firstname.lastname@example.org or amended legislation enacted in 2005 were child government entities controlling or affecting wages Monthly Labor Review January 2006 3 State Labor Laws, 2005 or benefits paid by parties doing business with those entities. sota, and North Dakota now permit employers to pay wages via Hawaii now prohibits employment measures from being a debit card. Migrant workers in Minnesota who are required to instituted that could create a substantial probability of reducing change their abode due to a change in employment status must the full-time employment opportunities of persons other than be paid within 24 hours. Virginia employers who fail or refuse to those to whom a special minimum-wage rate has been authorized. pay wages are guilty of a Class 1 or Class 6 misdemeanor, Maine instituted a minimum salary in order for individuals to be depending upon whether the wages are less than or greater considered bona fide executive, administrative, or professional than $10,000. employees. New Mexico established a separate hourly wage rate (combining minimum-wage and tip earnings) for employees Agriculture. Persons in Michigan may not operate, cause to who earn at least $30.00 per month in tips. Maine and Vermont be operated, or allow an agricultural labor camp to be occupied passed legislation requiring the completion and submission of and used as such without those persons possessing a legal studies or analyses concerning living-wage issues. license. Those who do so without a license may be fined up to $10,000. Farm labor contractors in Oregon must submit certified Overtime wages. Alaska expanded the definition of the payroll records to the commissioner of the Bureau of Labor and employment of persons considered as exceptions to the overtime Industries. regulations to include certain types of computer employment positions. In Illinois and Oregon, certain health professionals Child labor. Arkansas clarified the permissible hours of may no longer be required to work overtime unless certain employment for 16-year-old and 17-year-old minors and now circumstances or criteria are present. allows 11-year-old minors to be employed as sports officials for younger age brackets if certain criteria are met. Illinois State Prevailing wages. Connecticut clarified coverage under its agencies may not issue procurement contracts if the contracts prevailing-wage law to include independent contractors. Illinois do not assert that no foreign-made material, equipment, or amended its prevailing-wage law so that when second or supplies furnished to the State may be produced in whole or in subsequent underpayment recoveries are brought against a part by the labor of any child under 12 years. Nebraska now contractor or subcontractor, additional civil penalties may be prohibits minors under 16 years from working as door-to-door levied as a result of the action against those parties. Maine solicitors, except to current customers of newspapers or statutes now state that any party who believes that there are shopping news. New Jersey increased its civil monetary more than 10 workers employed in the State in a laborer, worker, penalties and administrative penalties for employers found or mechanic trade or occupation for which no wage rates and guilty of first and subsequent child labor violations. New York benefits were set in the previous survey may petition for employers who fail to obtain, and provide upon demand, inclusion of that trade or occupation in a supplemental survey. employee proof of age may be fined and/or imprisoned for first New Mexico raised the dollar amount required of a contract offenses and fined or imprisoned with an increased severity for before prevailing wages must be paid. New York made it a subsequent offenses. Rhode Island modified the listing of misdemeanor for persons or corporations to pay less than the hazardous occupations for minors under 16 years. Texas law stipulated wage or supplement after entering into a public now requires minors to be at least 11 years of age in order to contract or subcontract and stated that such violations may be engage in the delivery of newspapers; the State also amended punished by fine and/or imprisonment for a first offense. Rhode the definition of the phrase “delivery of newspapers.” Counties, Island contractors for public works who fail to post the appro- cities, and towns in Virginia may authorize any person residing priate prevailing-wage posters and information in conspicuous anywhere in the State who is 16 years or older and who is a places shall be deemed guilty of a misdemeanor and liable for a member of a volunteer fire company within such locale to seek civil monetary penalty that may be assessed on a daily basis. certification under National Fire Protection Association 1001, level-1, firefighter standards as administered by the Department Wages paid. Connecticut clarified the requirements for of Fire Programs. payment of commissions to salespersons who are terminated, while Hawaii expanded the information that must be contained Drug and alcohol testing. California drivers of school in payroll receipts given to employees. Maine expanded its transportation vehicles (those vehicles not used for the primary definition of wages to include compensation paid via a direct- purpose of transporting children) who are not otherwise required deposit system, automated teller machine cards, or some other to participate in a testing program of the U.S. Secretary of means of electronic transfer, as long as the employee either can Transportation are now required to participate in a program that make an initial withdrawal of the entire amount at no additional is consistent with the controlled-substance and alcohol use cost or the employee can choose another means of payment and testing requirements of the U.S. Secretary of Trans- that involves no additional cost. Maryland, Michigan, Minne- portation that apply to school busdrivers. District of Columbia 4 Monthly Labor Review January 2006 government employees who provide direct services to children an employment policy or collective bargaining agreement shall must participate in a mandatory drug and alcohol testing allow an employee to use the paid leave for the care of an program. Minnesota employers may now request or require immediate family member. The employer may limit the number of employees to undergo drug and alcohol testing on a random hours taken for this purpose, but in no instance may the hours basis only if the employees are employed in a safety-sensitive allowed be fewer than 40 in a 12-month period. Civil actions may position or if they are employed as professional athletes who now be brought against Maine employers who violate the State are subject to a collective bargaining agreement permitting Family Medical Leave Act. Oregon clarified the definition of a random testing to the extent consistent with the agreement. In health care provider under the State Family Medical Leave Act. Tennessee, both newly hired and existing employees may not The Washington State Family Care Law now allows employees provide any form of transportation services for compensation to use sick leave or other paid time off, including time allowed to a childcare agency or engage in any form of driving service under certain disability policies, to care for certain family involving children until the employees have undergone a drug members, including adoptive parents, who have certain health test and the results are negative for illegal drug use. Motor conditions. carriers, employers, or consortiums in Washington State that are required to have a testing program must report, to the State Human trafficking. This is an area that is showing a rise in Department of Labor, any refusal by a commercial motor vehicle interest by an increasing number of States. Arizona, Arkansas, driver to take a drug or alcohol test when the medical review California, Colorado, Illinois, Kansas, Louisiana, New Jersey, officer or breath alcohol technician has not reported the refusal. and Washington all enacted legislation dealing with the issue. The legislation dealt with issues that ranged from (1) estab- Equal employment opportunity. Language that prohibited lishing a definition of human trafficking, to (2) ordering women from working in mines was deleted from Arkansas studies of the problem, to (3) establishing fines and terms of statutes. In addition, employees in Arkansas who have been imprisonment for performing such acts, and (4) providing discriminated against because of their military service may bring services to victims of trafficking. civil action seeking backpay with interest, orders to recover compensatory and punitive damages, or an order to recover the Time off. Employees in Alabama may no longer be required to cost of litigation and attorneys’ fees. Depending upon the use various types of personal leave for time spent in jury-related number of persons employed by the firm, damages may range activities. State employees and officers of Arizona who are from a minimum of $15,000 to a maximum of $300,000. The members of the National Guard or Reserves and who are ordered Hawaii Revised Statutes now prohibit equal-pay discrimination to active duty are to be paid the difference between the em- based upon the sex of an individual, while Idaho Code prohibits ployees’ or officers’ regular State pay and military pay if all annual employment discrimination because of a disability, unless the and military leave balances have been exhausted. Arkansas disability prevents the performance of the work required on the employers must provide an unpaid leave of absence for job in question. Louisiana adopted a resolution that a study be employees who are engaged in (1) testing for, (2) the donation conducted to develop a plan to address barriers that prevent of, or (3) recovery from organ donation. A Florida State agency persons with mental illness from seeking, obtaining, and has been required to establish a program to award matching maintaining employment. Maine now prohibits employment grants to private-sector employers that provide wages to em- discrimination against any applicant or employee because of his ployees serving in the State National Guard or Reserves while or her sexual orientation. Nebraska Revised Statutes were on Federal active duty. The grants are limited to a percentage of amended to define an employer as any person or agent thereof, the monthly wages paid to the employee who is a resident for engaged in an industry, who has 15 or more employees for each the actual period of such duty. Depending upon the number of working day in each of 20 or more calendar weeks in the current employees, Illinois employers must grant a minimum number of or preceding calendar year. Rhode Island has established an days of unpaid family military leave to an employee during the office with the purpose of working towards developing a time State or Federal deployment orders are in effect. Also in business case for equity in building a diverse workforce to Illinois, hotel room attendants must be provided with a minimum guarantee fair and reasonable opportunities for public service. of two 15-minute rest breaks and one 30-minute meal break in A business case includes, among other things, analyses of the each workday in which they work at least 7 hours, but only in current workforce and the needs or problems associated with counties exceeding a certain population. New Hampshire em- the issue of workforce diversity, as well as proposed alter- ployers are now required to allow employees who are victims of native solutions to those problems. certain crimes to leave work to attend court or other legal or investigative proceedings associated with the prosecution Family issues. Public and private employers in Maine with of the crime. In Rhode Island, most employers involved in the more than 25 employees and who provide paid leave under continuous employment of women and children must provide Monthly Labor Review January 2006 5 State Labor Laws, 2005 a 20-minute mealtime within a 6-hour work shift and a 30- personnel, or vehicle maintenance record kept that contains or minute mealtime within an 8-hour work shift. Employees in is required to contain the address of the employee’s residence Virginia who miss work to serve as election officers cannot contain instead the address of the public agency employing the now be discharged, required to use sick leave or vacation time, eligible employee. Pennsylvania employers who disclose or have any other adverse personnel action taken against them, information about a current or former employee’s job per- provided that they give their employer reasonable notice of their formance to a prospective employer of that employee, upon the absence. request of the prospective employer of the current or former employee, when acting in good faith, are immune from civil Worker privacy. Persons in California are prohibited from liability for such disclosure or its consequences in any case knowingly posting the home address or telephone number of brought against the employer by the current or former employee. any elected or appointed official, or that of the official’s residing Texas has extended the confidentiality of addresses, telephone spouse or child, on the Internet, knowing that that person is an numbers, Social Security numbers, and personal family in- elected or appointed official and intending to cause imminent formation to cover employees of a district attorney, criminal great bodily harm that is likely to occur or threatening to cause district attorney, or county or municipal attorney whose juris- imminent great bodily harm to that individual. Georgia now diction includes any matters concerning criminal law or child exempts from disclosure those records which reveal the home protective services. Washington State employers who disclose address, Social Security number, or home telephone number of information about a former or current employee are now immune certain public employees, as well as insurance or medical infor- from civil and criminal liability if the information relates to the mation about such employees. Information contained in North employee’s diligence, skill, ability to perform his or her job, or Carolina school employee personnel files is confidential and reliability in performing the job, or if it relates to any illegal act shall not be opened for inspection or examination, except to the committed in performing the duties of the job. The employer is employee, applicant for employment, or former employee in presumed to be acting in good faith, a presumption that can be question or to his or her properly authorized agent. Also in North rebutted only by showing clear and convincing evidence to Carolina, public officials and employees who knowingly, willfully, the contrary. and with malice permit any person to have access to information The discussion that follows consists of detailed descriptions contained in a personnel file are guilty of a Class 3 misdemeanor. of legislation enacted or amended during the past year in Eligible public employees in Oregon may request that any driver, individual States in the various categories tracked. Alabama employer to drop out of the program at any final court judgment or administrative deci- time by providing written notice of such sion on or before the effective date of the legis- Time off. Employees may no longer be intention. lation in May 2005. required or requested to use annual leave, vacation leave, unpaid leave, or sick leave Alaska Arizona for time spent responding to a summons for jury duty, time spent participating in Overtime. The State Wage and Hour Act, as Employment agency. Agreements be- the jury selection process, or time spent it relates to the employment of persons acting tween clients and employment agencies actually serving on a jury. in a supervisory, administrative, executive, or now govern both parties and all employees professional capacity who are listed as ex- covered by the agreements. The client has the Workplace security. The legislature ceptions to the overtime regulations, was right to direct and control covered employees adopted a resolution that urges private amended to include computer systems ana- in order to conduct the client’s business. Such enterprises doing business in the State, with lysts, computer programmers, software engi- agreements require the agency to pay em- the assistance of the State Department of neers, and other similarly skilled workers. ployee wages; withhold, collect, report, and Homeland Security, to become active par- These workers employed in a bona fide remit payroll-related taxes; and make pay- ticipants in the Basic Pilot Employment executive, administrative, or professional ments for benefits. Both the agency and the Verification Program, a workplace verification capacity shall be compensated on a salary or client have the right to hire, terminate, and program administered by the U.S. Depart- fee basis at a rate of not less than 2 times the discipline employees. A professional-related ment of Homeland Security. The program State minimum wage for the first 40 hours of agreement does not affect, modify, or amend uses an automated system that (1) allows employment each week. anything required under the Federal National employers to confirm the employment eli- Flight crews that worked on or after Labor Relations Act, the Federal Railway gibility of all newly hired employees, (2) January 1, 2000, are exempt from overtime Labor Act, or any required registration or improves the accuracy of wage and tax compensation. This legislation was applied certification; nor does it diminish, abolish, or reporting and protects jobs for authorized retroactively to all actions and proceedings remove any rights of covered employees under U.S. workers, (3) has safeguards to ensure that were based on a claim for overtime any clients or obligations of clients to any that both the employer’s and the employee’s compensation for employment for flight crew covered employees that existed before the information is protected, and (4) permits an members and that were not determined by effective date of the agreement. Agencies that 6 Monthly Labor Review January 2006 provide professional employer services within do not prohibit the use of the peace officer’s from the record. They cannot be disqualified if the State must register with the Arizona secre- photograph if (1) it is used by a law enforce- the offense was not committed while they were tary of State, have a minimum net worth of at ment agency to assist a person who has a performing duties of an emergency medical least $100,000, and deposit a bond, letter of complaint against an officer in identifying the technician. credit, or securities with a minimum market officer or (2) the photograph is obtained from value of $100,000. a source other than the department. Equal employment opportunity. An em- ployee cannot be discriminated against because Human trafficking. Under the State Other laws. For taxable years beginning with of his or her military service. Those currently Revised Statutes, it is now unlawful to and after December 31, 2005, a credit is allowed serving and those who have been honorably threaten or cause bodily injury to a person, against the taxes imposed on an employer discharged within 6 months of the alleged restrain a person, or withhold government whose employee is a member of the State discrimination may bring a civil action in a records or other personal property in an National Guard if the employee is placed on circuit court of competent jurisdiction. The effort to obtain a person’s services. The active duty. The amount of the credit is $1,000 employee may seek backpay with interest, an revision of the statutes prohibits providing for each employee placed on active duty. The order to recover compensatory and punitive or obtaining another person by any means employer qualifies for the credit if (1) the damages, or an order to recover the cost of for the purpose of prostitution by force, employee is in a full-time (or equivalent) litigation and attorneys’ fees. Total damages fraud, or coercion. The act of trafficking position when called to duty or (2) during the awarded may not exceed $15,000 from an another person to subject them to forced taxable year, the employee has served on active employer who employs 5 to 14 employees labor or services is also unlawful. Benefiting duty for training that exceeds the required for 20 or more weeks, $50,000 from an em- financially or receiving anything of value annual training period. Moreover, (3) if the ployer who employs between 15 and 100 from violating these sections of the statutes employer’s allowable credits exceed the taxes employees for 20 or more weeks, $100,000 is a Class 2 felony, and the victim is entitled otherwise due or if there are no taxes due by from an employer who employs between 101 to either the gross income of the perpetrator, the employer, the credit may be carried forward and 200 employees for 20 or more weeks, the value of the victim’s labor to the defend- for not more than 5 consecutive taxable years $200,000 from an employer who employs ant, or the value of the victim’s labor as as a credit against subsequent years’ income between 201 and 500 employees for 20 or more guaranteed under the Fair Labor Standards tax liability; (4) the credit may be claimed only weeks, and $300,000 from an employer who Act. once in any taxable year; and (5) co-owners of employs more than 500 employees for 20 or a business, including partners, each may claim more weeks. Action must occur within 1 year Immigrant protections. The State Revised only the prorated share based on the ownership of the alleged conduct or within 1 year of the Statutes also were amended to stipulate that interest, and such owners may not exceed the end of the employee’s military mobilization. cities, towns, and counties shall not con- amount that would have been allowed to a sole If the employer demonstrates that its actions struct or maintain a work center if any part owner. were based on legitimate, nondiscriminatory of the center is to facilitate the knowing factors unrelated to the military service, the employment of an alien who is not entitled employer may use that fact as a defense. to lawful residence in the United States. Arkansas Legislation was enacted that deleted lan- guage prohibiting women and girls of any Time off. A State employee or an officer of Child labor. An amendment to the State’s age from working in a mine. Women who are the State who is in the Military Reserves or child labor law clarified the permissible hours 18 years and older now are permitted to work National Guard and who is ordered to active of employment for 16-year-old and 17-year- in mines. duty due to a declaration of a state of emer- old minors. Minors of these ages may not work gency is to receive the difference in the em- more than 10 consecutive hours in any one Hours worked. The State code concerning ployee’s or officer’s regular State pay and day or more than 10 hours in a 24-hour period. hours of duty and the rest period of drivers military pay if all annual and military leave Minors under 18 years may work before 6:00 was repealed. It is now legal to keep drivers balances have been exhausted. Neither the A.M. or after 11:00 P.M. on nights preceding on duty for more than 15 consecutive hours employee nor the officer may accrue annual nonschool days only in occupations that have if their shift is followed by 8 hours of rest. or sick leave during the period of active duty. been declared safe by the State’s Department Within 60 days of return from active duty, of Labor. Human trafficking. The State code was the employee or officer must provide proof Under the State’s child labor law, 11-year- amended to define the trafficking of persons that he or she rendered honorable service old minors now may be employed as sports and trafficking activities. An individual is while on active duty for any period for which officials for younger age brackets if an adult guilty of “trafficking”—a felony—if he or the employee or officer received the pay dif- representative of the athletic program is on the she recruits, harbors, transports, or obtains a ferential. premises at which the event is occurring and if person for labor or services, through the use of the adult representative possesses a signed force, fraud, or coercion, for the purpose of Worker privacy. The State Revised Statutes consent from the minor’s parent or guardian. subjecting the person to involuntary servitude, were amended to specify that the Department Regulations regarding hours of employment peonage, debt bondage, slavery, marriage, of Transportation shall not release a photo- still apply to any employed minor. adoption, or sexual conduct, or if the person graph of a peace officer if the officer has benefits financially or by receiving anything of requested, in the manner prescribed by the Discharge. Emergency medical tech- value from participation in any of these State, that one or more persons be prohibited nicians can be disqualified from certain activities. “Debt bondage” is the status or from accessing the peace officer’s residential positions of employment for having been condition of a debtor arising from a pledge address and telephone number in any record convicted of certain types of offenses, includ- by the debtor of his or her personal services maintained by the department. The statutes ing previous offenses that have been expunged or those of a person under the debtor’s con- Monthly Labor Review January 2006 7 State Labor Laws, 2005 trol as security for debt if the value of those U.S. Transportation Security Administra- shall be responsible for taking all steps services, as reasonably assessed, is not ap- tion to establish the fact that the driver is necessary to provide statewide advocacy, plied to the liquidation of the debt or if the not a security risk. Before issuing a person a coordination, enforcement, and monitoring length and nature of the services are not commercial driver’s license, the Office of of these programs. The board shall develop, respectively limited or defined. “Involun- Driver Services must obtain information implement, and maintain equal employment tary servitude” is a condition of servitude about the person’s driving record through opportunity guidelines and provide technical induced either (1) by means of any scheme, the License Information System, from the assistance in the development and implemen- plan, or pattern of behavior intended to National Driver Register, and from each State tation of the programs. The board also shall cause a person to believe that if the person in which the person has been licensed. The provide statewide training. Upward mobility does not enter into or continue the servitude, criminal background check became effective shall be tracked for persons categorized by the person or another person will suffer after January 30, 2005. After May 31, 2005, race, ethnicity, gender, and disability to deter- serious physical injury or restraint or (2) by before renewing or accepting a transferred mine whether they are being placed into better the abuse or threatened abuse of the legal commercial driver’s license with a hazardous- paying and higher level positions. Each State process. “Peonage” is defined as holding materials, or “H,” endorsement, the Office of agency shall develop, update annually, and someone against his or her will to pay off a Driver Services shall obtain a criminal back- implement a plan that shall, at a minimum and debt. ground check and evaluation from the Trans- on the basis of race, ethnicity, and gender within portation Security Administration. If the li- each department by job category and level, Time off. Legislation was enacted to ensure cense is denied or not renewed, the decision identify the areas of significant underutilization that employees of the State who have incurred may be appealed to the Agency. of specific groups. All job categories shall be a disability due to military service are entitled analyzed. An explanation and specific actions to a leave of absence with pay for treatment or Other laws. A relative of a school board must be developed for removing any non-job- reexamination. The leave of absence may not member may not be employed for compen- related employment barriers. Departments exceed 6 days during 1 calendar year. The em- sation totaling more than $5,000 by the public shall establish and invite all employees to serve ployee is entitled to his or her regular salary educational entity that the member serves on a committee whose members either have during the leave of absence, which cannot be during his or her tenure of service, unless the disabilities or have an interest in disability deducted from regular annual leave or sick director of the State Department of Education issues. The committee must comprise at least leave. During the leave of absence, the em- approves and issues a letter of exemption. two-thirds of the active advisory membership. ployee also is entitled to maintain all rights and Relatives who were employed before their If the board finds that past discriminatory privileges previously given him or her. The family member joined the entity may continue practices have existed, it may modify any leave of absence may not interfere with retire- their employment. An increase greater than layoff or reemployment orders if the failure to ment benefits or insurance premiums contrib- $2,500 in their compensation also must be do so by a department would result in ineli- uted by the State. approved by the director. Family members gibility for a Federal program and the loss of Private employers are required to provide may substitute as teachers, cafeteria workers, Federal funds. The State Personnel Board must an unpaid leave of absence for employees or busdrivers, but not longer than 30 days per establish, monitor, and report on equal oppor- during testing for, donation of, and recovery year. In unusual and limited circumstances, the tunity programs, including goals and timetables from organ donation. In addition to any medi- board may approve an employment contract for ensuring that individuals with disabilities cal, personal, or other paid leave provided by involving a family member. If any proposed have access to State employment. the employer, the employer shall grant the contract involves a family member, the board employee an unpaid leave of absence to allow member must leave the room during the vote. Department of labor. The Division of Labor the employee to serve as an organ or bone- Standards Enforcement does not have the marrow donor if the employee requests a leave California authority to promulgate a specified regulation of absence in writing. The length of the leave relating to meal and rest periods, because this of absence shall be equal to the time requested Equal employment opportunity. Any per- authority rests with the State legislature or the by the employee or 90 days, whichever is less. son claiming to be aggrieved by an alleged Industrial Welfare Commission. The latter is However, a private employer may grant a paid unlawful practice may file a written verified the State agency empowered to formulate or unpaid leave of absence for a length of time complaint with the State Department of Fair regulations governing employment in the State. greater than 90 days. If the employer agrees to Employment and Housing. The employee pay the employee’s regular salary or wages has 1 year from the date on which the alleged Drug and alcohol testing. Drivers of school during the leave of absence, the employer is unlawful practice or refusal to cooperate oc- transportation vehicles (those which are not a entitled to a credit against its State withholding curred. However, the filing period may be school bus, school pupil activity bus, or youth tax liability. If the employer grants the em- extended for various reasons. The amendment bus and which are not used for the primary ployee a leave of absence greater than 90 days, of the State Government Code allows an exten- purpose of transporting children) who are the credit provided shall be limited to the regular sion, not to exceed 1 year, from the date that a employed to drive such vehicles and who are salary or wages paid during the first 90 days of person allegedly aggrieved by an unlawful not otherwise required to participate in a the leave of absence. The credit shall be taken practice attains the age of majority. testing program of the U.S. Secretary of within 1 year of the date of the beginning of the The State Civil Service Act requires each Transportation shall participate in a program leave. agency and department to establish an effective that is consistent with the controlled-sub- equal opportunity (formerly titled “affirm- stance and alcohol use and testing requirements Workplace security. The State now requires ative action”) program to establish goals and of the U.S. Secretary of Transportation that that commercial drivers who transport timetables designed to overcome any identified apply to school busdrivers and that are set hazardous materials undergo a criminal underutilization of minorities and women in forth in Title 49 of the Code of Federal Regu- background check and evaluation from the their organizations. The State Personnel Board lations. 8 Monthly Labor Review January 2006 Human trafficking. A victim of human ment that provides for meal periods and of moral turpitude are not to be granted secure trafficking may bring a civil action for actual includes a monetary remedy if the employee access to these delivery systems. The auditors compensatory or punitive damages or injunc- does not receive a meal period as required must submit their fingerprints to the attorney tive relief. “Trafficking” refers to all acts by the agreement, then the terms, conditions, general for a criminal records check to deter- involved in the recruitment, abduction, trans- and remedies of the collective bargaining mine their eligibility for access to the electronic port, harboring, transfer, sale, or receipt of agreement apply. delivery systems. The attorney general shall persons within national or across international forward the request to the State Department borders through force, coercion, fraud, or Worker privacy. The State Government of Justice, which shall then forward the request deception, in order to place such persons in Code was amended to prohibit persons from to the Federal Bureau of Investigation in order situations of slavery or slaverylike conditions, posting the home address or telephone to obtain the records check information. The forced labor or services (such as forced pros- number of any elected or appointed official, information then shall be reviewed by the attorney titution or sexual services), domestic ser- or of the official’s residing spouse or child, general to determine the person’s eligibility for vitude, bonded sweatshop labor, or other debt on the Internet, knowing that the person is access to the electronic delivery systems in bondage. A prevailing plaintiff also may be an elected or appointed official and intending question. awarded attorneys’ fees and costs, as well as to cause imminent great bodily harm that is remedies up to 3 times their actual damages or likely to occur, or threatening to cause im- $10,000, whichever is greater. Punitive dam- Colorado minent great bodily harm, to that individual. ages may be awarded as well, upon proof of A violation of this prohibition is a misde- Agriculture. Employers engaged in flori- defendant’s malice, oppression, fraud, or meanor, while a violation that leads to bodily cultural pursuits and who provide their em- infliction of duress in committing the act of injury of the official or his or her residing ployees with board and lodging are now in- human trafficking. An action shall be brought spouse or child is a misdemeanor or a felony. cluded among employers in those industries in within 5 years of the date on which the victim Officials whose home address or phone which all wages or compensation earned by an was freed from the trafficking situation or number is made public as a result of a viola- employee shall be due and payable for regular within 8 years after the date the plaintiff tion of the State Government Code may bring periods of no greater duration than 1 month attains the age of majority if the victim was an action seeking injunctive or declarative and on paydays no later than 10 days following a minor when the trafficking occurred. The relief in any court of competent jurisdiction. the close of each pay period. State Alliance to Combat Trafficking and If a jury or court finds that a violation has Slavery Task Force was repealed as part of occurred, it shall award damages to that Human trafficking. A task force on human this legislation, but was reestablished under official in an amount up to a maximum of 3 trafficking has been established. For purposes a separate statute. times the actual damages, but in no case of the task force, trafficking is considered as all The State has developed the Joint Com- less than $4,000. acts involved in the recruitment, abduction, mittee on Human Trafficking to study and State law was amended to require that, transport, harboring, transfer, sale, or receipt investigate a number of issues, including the by January 1, 2008, an employer include no of persons, within international or national training of law enforcement agencies, education more than the last four digits of an em- borders, through force, coercion, fraud, or efforts aimed at identifying trafficking victims, ployee’s Social Security number or an exist- deception, in order to place such persons in coordination among programs serving victims ing employee identification number other situations of slavery or slaverylike conditions, of trafficking, the development of culturally than a Social Security number on any check forced labor or services (such as forced pros- appropriate services, and the collection of provided to the employee. If a State, city, titution or forced sexual services), domestic better data regarding the number of victims and county, district, or any other governmental servitude, bonded sweatshop labor, or other their locations within the State. The Joint entity furnishes its employees with a check, debt bondage. The purpose of the task force is Committee will report to the legislature on draft, or voucher paying the employee’s to collect data, evaluate prevention methods September 30, 2006, and is authorized to act wages, then, by January 1, 2008, no more and prosecution, analyze existing criminal until November 30, 2006. than the last four digits of the employee’s statutes, recommend revisions to them, and The State established the California Alliance Social Security number or an existing consult with organizations to strengthen their to Combat Trafficking and Slavery (California employee identification number must efforts against human trafficking. The mem- ACTS) Task Force to evaluate various programs appear in the appropriate place on that bers also will identify all programs that pro- available to victims of trafficking and various document. Current or former employees vide services to victims of human traffick- criminal statutes addressing the issue. The Task have the right to inspect or copy the records ing and will evaluate the public-awareness Force must report to the State legislature, upon reasonable request within no later campaign. Findings will be reported to the Governor, and attorney general on or before than 21 calendar days from the date of the State’s judiciary committees by January 15, July 1, 2007, regarding the measure and eval- request. 2007. uation of the progress of the State in pre- venting trafficking, protecting and providing Workplace security. The Electronic Whistleblower. The statutes governing the assistance to victims, and prosecuting persons Recording Delivery Act of 2004 requires State Personnel Board were revised. The board engaged in the crime. computer security auditors who perform is now permitted to authorize administrative independent audits of electronic recording law judges to conduct hearings on any matter Time off. Existing law requires employers to delivery systems to have access to any within the jurisdiction of the board. Petitions provide meal periods to employees during aspect of the systems they audit. Any filed with the board that result in an inves- work periods of specified duration. State law auditors who have been convicted of, or tigation into discrimination against an em- was amended so that if an employee in the have pending criminal charges pertaining ployee or that result in retaliation against an motion picture or broadcasting industry is to, a felony or who have misdemeanor employee for disclosure of information are covered by a valid collective bargaining agree- charges related to theft, fraud, or a crime now exempt from the 90-day review require- Monthly Labor Review January 2006 9 State Labor Laws, 2005 ment, and procedures are specified whereby a Unfair labor practice. No State employee Health Omnibus Congressional Review Emer- certified employee shall be notified of charges shall be discharged, threatened, or other- gency Declaration Resolution of 2005.” The and his or her right of appeal. Appeal hearings wise retaliated against with respect to the legislation established a mandatory drug and are now required to be held within 90 days, terms or conditions of his or her employment alcohol testing program for District govern- rather than 45 days, of receipt of the employee’s due to the exercise of the person’s rights under ment employees who provide direct services appeal. the State grievance and complaint procedure. to children. An employee who alleges a violation may file a written complaint directly to the State Per- Genetic testing. The District’s Human Connecticut sonnel Office. The employee and the director Rights Act of 1977 was amended. Although of personnel or his or her designee may agree the Act prohibits genetic discrimination by Minimum wage. The State minimum wage to meet and attempt an informal resolution of employers, employment agencies, and labor shall be not less than $7.40 per hour effective the complaint, or the case could be heard and organizations, such entities are not prohibited January 1, 2006, and not less than $7.65 per the director (or designee) will issue a written from seeking, obtaining, or using genetic hour effective January 1, 2007. decision within 45 days of receipt of the information to determine the existence of a complaint. Such decision shall be final and bona fide occupational qualification that is Prevailing wage. The State prevailing-wage binding. If it is found that the employee engaged reasonably necessary for the normal operation law applies to people doing the work of me- in prohibited conduct, the State Personnel of an employer’s business or enterprise. When chanics, laborers, or workers on prevailing- Office shall initiate appropriate disciplinary such instances occur, the employee or appli- wage projects, regardless of whether the action consistent with that decision. If the cant must provide a written informed consent, individuals are or are not independent con- complainant employee is not satisfied with the genetic information must be provided to tractors. the director or designee’s decision, the em- the employee or applicant in writing as soon ployee may submit a written appeal to the as it is available, and the genetic information State Merit Employee Relations Board within must not be disclosed to any other person. In Wages paid. When a contract between a 20 calendar days of receipt of that decision. principal and a sales representative is termi- addition, the Act does not prohibit the em- nated, the principal shall pay to the sales ployer from seeking, obtaining, or using genetic representative, (1) by the contract date speci- District of Columbia information to determine an employee’s or fied or 30 days after the effective date of termi- applicant’s susceptibility or level of exposure nation, whichever is later, all commissions that to potentially toxic substances in the work- Drug and alcohol testing. Employees of place. Again, when such instances occur, the are due on or before the effective date of the the District government can be randomly termination, and (2) by the contract date speci- employee or applicant must provide a written selected for drug and alcohol testing. An informed consent, the genetic information must fied, but not later than 30 days after such applicant may be offered employment contin- be provided to the employee or applicant in commission becomes due under the contract gent upon receipt of a satisfactory drug testing writing as soon as it is available, and the genetic terms, all commissions that are due after the result and may work in a position that is not information must not be disclosed to any other effective date of the termination. Any principal safety sensitive prior to receiving the results. person. who willfully, wantonly, recklessly, or in bad The District will give notice of implementing a faith fails to pay any commissions due shall be testing program at least 30 days in advance of Minimum wage. As of January 1, 2006, liable in a civil action brought by a sales the implementation of the program. No the minimum wage was raised to $7.00 an representative for twice the full amount of the employee may be tested prior to receiving the hour or was set at the Federal minimum wage commissions owed. The acceptance by a sales required notice. Each employee will be given plus $1.00, whichever is greater. representative of a partial payment of com- one opportunity to seek treatment if needed. mission from a principal shall not constitute a District employees who operate a motor vehi- release by such sales representative of any cle in the performance of their employment Florida other commissions that are due, except if such will be subject to the testing of their urine or payment is made pursuant to a binding and breath, with the employees’ consent. Testing Minimum wage. Due to an initiative passed final written settlement and release. Any full for the purposes of determining drug or alcohol in 2004, and following the guidelines of that release of all commissions claimed to be owed content can be done whenever a supervisor initiative, the State minimum wage increased by a sales representative as a condition of a has probable cause or a police officer arrests to $6.40 per hour on January 1, 2006. Under partial payment of commission shall be null such person for a violation of the law and has the State Minimum Wage Act, beginning and void. reasonable grounds to believe that the em- September 30, 2005, and then annually on ployee has been operating a motor vehicle September 30 thereafter, the Agency for within the District while under the influence Workforce Innovation shall calculate an Delaware of alcohol, any drug, or any combination adjusted State minimum-wage rate by thereof. Private providers that contract with increasing the State minimum wage by the rate Hours worked. A utility vehicle driver en- the District, and each private entity licensed of inflation for the 12 months prior to Sep- gaged in the provision or restoration of utility by the District government, who provide tember 1 of each year. A grievance process has services when the loss of the service is un- employees to work in safety-sensitive posi- been established for those who believe that expected, unplanned, or unscheduled shall be tions also shall establish mandatory drug and they have been discriminated against by their exempt from the regulations governing the alcohol testing policies consistent with District employer. If the issue is resolved in favor of hours of service for drivers. The drivers no requirements. the employee, the employer has 15 calendar longer need be given 24 consecutive hours off The Council of the District of Columbia days after receiving notice of the resolution of following a period of at least 7 consecutive resolved and put in place emergency legislation the grievance to pay the total amount of unpaid days of work. entitled “The Child and Youth, Safety and wages or otherwise satisfy the aggrieved per- 10 Monthly Labor Review January 2006 son. Failure to do so may result in additional Georgia in the establishment for equal work on jobs, claims for unpaid wages. The State attorney the performance of which requires equal skill, general may bring a civil action to enforce this Inmate labor. The provisions of the Working effort, and responsibility, and that are per- Act and may seek injunctive relief. In addi- Against Recidivism Act authorize work pro- formed under similar working conditions. tion, or in lieu thereof, the attorney general grams of voluntary labor by inmates of State may seek to impose a fine of $1,000 per viola- and county correctional institutions for Minimum wage. All employers shall pay tion, payable to the State, on any employer or privately owned profit-making employers to each of their employees wages at the hourly other person found to have willfully violated produce goods and services for sale to public rate of not less than $6.75 per hour beginning the Act. or private purchasers under certain circum- January 1, 2006, and $7.25 per hour beginning stances in order to provide job experience and January 1, 2007. Time off. The State Agency for Workforce skills to participating inmates. With an eye The wages of meal count assistants, adult Innovation shall establish a program to award toward lowering recidivism rates, such pro- supervisors, and classroom cleaners shall be grams enable participating inmates to accu- no less than the current State minimum wage. matching grants to private-sector employers mulate savings and earn income with which to Special minimum wages for learners, appren- that provide wages to employees serving in pay fines, restitution, and family support. tices, full-time students, paroled wards of the U.S. Armed Forces Reserve or the State The programs also generate taxes from in- State youth correctional facilities, handi- National Guard. The program is for those mates’ income and reduce the cost of incar- capped workers, individuals whose earning employees on Federal active duty subsequent capacity is impaired by old age or physical or to January 1, 2005. Each grant shall be ceration. Payment of inmates’ wages will be at a rate not less than that paid for work of a mental deficiency or injury (for whom special awarded to reimburse the employer for not certificates have been issued with fixed expira- more than one-half of the monthly wages similar nature in the location in which the work is performed. Further, there must be an assur- tion dates) may be prescribed. No measures paid to the employee who is a resident for may be instituted that shall create a substantial the actual period of such duty. The monthly ance that (1) inmate labor will not result in the displacement of employed workers, (2) local probability of reducing the full-time employ- grant per employee may not exceed one-half ment opportunities of persons other than of the difference between the amount of the private employers will not be affected, and (3) inmates will be employed in areas where those to whom the special minimum-wage rate monthly wages paid by the employer at the has been authorized. level paid before the date the employee was there is a surplus of available gainful labor in a called to such duty and the combined amount particular locality. of the employee’s active-duty base pay, Prevailing wage. Every laborer and mechan- housing and variable allowances, and sub- Minimum wage. A local government entity ic performing work on the job site for the sistence allowance. Professional licenses may not, through purchasing or contracting construction of any public work project shall issued to any member of the National Guard procedures, seek to control or affect the wages be paid no less than the prevailing wage, which or of the U.S. Armed Forces Reserves shall or employment benefits provided by its ven- shall be established as the sum of the basic not expire while the member is serving on dors, contractors, service providers, or other hourly rate and the cost to an employer of such duty and shall be extended for up to 90 parties with which the local government entity providing a laborer or mechanic with fringe days after the member’s return from such does business. Nor shall a local government benefits. Prevailing-wage determinations shall duty. Further, if the license is renewed dur- entity, through the use of evaluation factors, include the basic hourly rate, the rate of con- qualification of bidders, or otherwise, award tribution or the cost of fringe benefits (as ing the 90-day period after the member’s preferences on the basis of wages or employ- reflected in the wage rate scheduled as an return from duty, the member shall be re- ment benefits provided by its vendors, con- hourly rate), and those rates regarded as pre- sponsible only for normal fees and activities tractors, service providers, or other parties vailing wages in each corresponding classi- relating to the renewal and shall not be charged with which the local government entity does fication of laborers and mechanics. The rate any additional costs, such as late or delin- for the corresponding classification of laborers quency fees. business. and mechanics shall be the rate paid to the greatest number of those employed in the State Worker privacy. Records that reveal the Workplace security. Water management on contracts that are similar to the contract in home address, Social Security number, or districts that have structures or facilities iden- question. home telephone number of public employees tified as critical infrastructure shall conduct (for example, a prosecutor or a publicly em- fingerprint-based criminal history checks on Wages paid. Every pay period, every em- ployed law enforcement officer), or records current or prospective employees and other ployer shall furnish each employee with a that reveal insurance or medical information designated persons, pursuant to the water legible, printed, typewritten, or handwritten about such employees, are exempt from the management district’s security plan for notice showing the employee’s total hours requirements of public disclosure. buildings, facilities, or structures and if those worked, overtime hours worked, straight-time persons are allowed regular access to the compensation, overtime compensation, other buildings, facilities, or structures defined as Hawaii compensation, total gross compensation, restricted-access areas in the district’s security amount and purpose of each deduction, total plan. Such checks will be conducted at least Equal employment opportunity. The State net compensation, date of payment, and pay once every 5 years or at other, more frequent Revised Statutes were amended to prohibit period covered. Subsequent to the receipt of intervals, as determined by the district. The pay discrimination based upon the sex of an written authorization from the employee, the costs of the checks shall be paid by the district. individual. Employers shall not discriminate employer may provide an electronic record, in Those districts without structures or facilities between employees because of sex by paying lieu of the aforementioned hard copy, that may identified as critical infrastructure also may wages to employees in an establishment at a be electronically accessed by the employee conduct the fingerprint-based criminal history rate less than the rate at which the employer and that the employer shall retain for a period checks. pays wages to employees of the opposite sex of at least 6 years. Monthly Labor Review January 2006 11 State Labor Laws, 2005 Idaho is used to carpool other laborers and that is notification procedure by a utility service selected exclusively, and is the sole choice of provider, the department may refuse to grant Equal employment opportunity. The State the laborer, for transportation. Violations of emergency declarations to that utility service code was amended to prohibit employment the Act’s requirements may result in the provider in the future without further con- discrimination against individuals because of a assessment of a civil monetary penalty not to firmation that a particular interruption of disability. This prohibition does not apply if exceed $6,000 following a first audit and $2,500 utility service does indeed constitute an emer- the disability prevents the performance of the for each repeat violation within 3 years. Under gency. work required in the employee’s job. the Act, each violation of the Act for each laborer and each day of violation constitutes a Human trafficking. The State Code was Illinois separate and distinct violation. amended to define the trafficking of persons and trafficking activities. Whoever knowingly Child labor. Every contract entered into by Equal employment opportunity. Each year, (1) recruits, entices, harbors, transports, pro- a State agency for the procurement of equip- the State Department of Central Management vides, or obtains another person by any means, ment, materials, or supplies, other than pro- Services shall prepare and revise a State His- or attempts to recruit, entice, harbor, transport, curement related to a public-works contract, panic Employment Plan in consultation with provide, or obtain another person by any must specify that no foreign-made equipment, knowledgeable individuals and organizations. means, intending or knowing that the person material, or supplies furnished to the State The department shall report on the plan to the will be subjected to forced labor or services; or under the contract may be produced in part or General Assembly by February 1 of each year. (2) benefits, either financially or by receiving in whole by the labor of any child less than 12 All State agencies shall implement strategies anything of value, from participating in a years of age. The contractor must agree to com- and programs to increase the number of venture that involves involuntary servitude, ply with this provision. Contractors who vio- Hispanics employed by the State and the including involuntary servitude of a minor, is late the provision may be subject to (1) a number of bilingual persons employed at guilty of a felony. In addition to suffering voiding of the contract at the option of the supervisory, technical, professional, and mana- incarceration, persons who commit such State agency, (2) the assessment of a penalty gerial levels. On the basis of assessments of offenses shall forfeit to the State any profits or that must be the greater of $1,000 or an amount bilingual service needs, and by monitoring the proceeds and any interest or property that the equaling 20 percent of the value of the equip- number of Hispanics and bilingual persons sentencing court determines was acquired or ment, materials, or supplies that the State employed by each agency, the annual report maintained as a result of keeping a person in agency demonstrates were produced in whole should reflect employment increases from year involuntary servitude or participating in or in part by child labor and supplied under to year. The department shall assist agencies trafficking in persons for forced labor or the contract; and (3) a suspension from bidding in the development and modification of training services, in violation of the statute. on a State contract for a period not to exceed programs to enable them to meet their affirm- 360 days. ative action and equal employment oppor- Overtime. Nurses may not be required to tunity goals. The department also shall provide work overtime, except in the case of an unfore- Employment agency. Day and temporary information regarding other training and seen emergency when such overtime is required labor service agencies operating without having educational resources, such as the Executive only as a last resort. The overtime shall not registered with the State Department of La- Recruitment and Graduate Public Service In- exceed 4 hours beyond an agreed-upon pre- bor are in violation of the State Finance Act ternships. determined work shift. When a nurse is man- and are subject to a possible $500 penalty. The State’s Human Rights Act was amended dated to work up to 12 consecutive hours, the When laborers are contracted by such agen- and now states that nothing in the Act shall be nurse must be allowed at least 8 consecutive cies, amounts deducted from their pay for construed as requiring any employer, employ- hours of off-duty time immediately following the cost of meals, equipment, and trans- ment agency, or labor organization to give the completion of a shift. No hospital may portation may not cause their wages to fall preferential treatment or special rights based discipline, discharge, or take any other adverse below the State or Federal minimum wage. on sexual orientation or to implement affirm- employment action against a nurse solely Also, when these laborers are contracted to ative action policies or programs based on because the nurse refused to work mandated work at a third-party client’s worksite, but are sexual orientation. overtime. Hospital employees may file com- not utilized by the third party, they shall be plaints of alleged overtime violations with the paid by the agency for a minimum of 4 hours Hours worked. Operators of utility service State Department of Public Health, but must of work at the agreed-upon rate. However, in vehicles engaged in emergency intrastate main- do so within 45 days following the occurrence the event that the agency contracts the laborer tenance or repair work in response to an of the incident giving rise to the alleged to work at another location during the same interruption of utility service are exempt from violation. shift, the laborer shall be paid by the agency the State’s regulations regarding maximum for a minimum of 2 hours of work at the hours of service. The exemption shall not ex- agreed-upon rate. The agency must keep all ceed the duration of the utility service pro- Plant closing. The employment of a high required employee and payroll records for the vider’s or the driver’s direct assistance in school or elementary school teacher transferred laborers it provides. Such an agency may not providing relief from the interruption, or 5 from one board or administrative agent to the allow a motor vehicle to be used to transport days from the date of the initial declaration of control of a new or different board or agent the laborers if the agency knows or should the emergency, whichever is less. Upon receipt shall be considered continuous employment if know that the vehicle used for transportation of notification, by a utility service provider, of such transfer or employment occurred by is unsafe or not equipped as required by the an interruption of utility service constituting reason of (1) the deactivation or reactivation Act, unless the vehicle is (1) the property of a an emergency, the State Department of Trans- of any high school or elementary school, (2) a public mass transportation system, (2) the portation shall declare that an emergency boundary change or the creation or reorgani- property of a common carrier, (3) the laborer’s exists. Should an audit by the department zation of any school district, (3) the creation, personal vehicle, or (4) a laborer’s vehicle that establish that there has been an abuse of the expansion, reduction, or dissolution of a spe- 12 Monthly Labor Review January 2006 cial-education program or joint educational training, building and maintenance, and the like, of 5 or more consecutive workdays. If fewer program, or (4) the creation, expansion, re- including, but not limited to, those benefit trust than 5 consecutive days are needed, the duction, termination, or dissolution of any funds, such as pension and welfare funds, advanced notice shall be given in a prac- joint-agreement program operated by a which are normally computed in the pre- ticable fashion. The employer may require governing board, regional superintendent, or vailing-wage rates and which otherwise would certification from the proper military au- other administrative agent or any program be subject to contribution obligations by thority to verify the employee’s eligibility operated pursuant to an Intergovernmental private employers that are signatory to agree- for the leave. An employee shall not take Joint Agreement. ments with labor organizations. this leave unless he or she has exhausted all accrued vacation, personal compensatory, Prevailing wage. The State Prevailing Wage Time off. The State’s One Day Rest in Seven and any other kind of leave granted to the Act was amended to state that when a second Act is amended for hotel room attendants— employee, except sick and disability leave. or subsequent action to recover underpay- those persons who clean guest rooms or put The employee who exercises family mil- ments is brought against a contractor or sub- them in order—working in a hotel or other itary leave shall be entitled to be restored contractor who is found liable for underpay- establishment licensed for transient occu- by the employer to the position (or an ments to any laborer, worker, or mechanic, pancy and located in a county with a popu- equivalent position) the employee held the contractor shall be liable to the Department lation greater than 3 million. Each attendant when the leave commenced, with equivalent of Labor for 50 percent of the underpayments shall receive a minimum of two 15-minute paid seniority status benefits, pay, and other terms payable as a result of the second or subsequent rest breaks and one 30-minute meal period and conditions. action and additionally liable for 5 percent of during each workday in which he or she works the amount of any such penalty to the State at least 7 hours. Such employees may not be Other laws. If an employer has given an for underpayments for each month following required to work during a break period. The individual a date upon which that individual the date of payment during which the under- break area should be provided with adequate is to begin performing services (other than payments remain unpaid. seating and tables in a clean and comfortable part-time, temporary employment or casual Contractors and subcontractors engaged in environment, with clean drinking water pro- labor) for that employer, but, before the date public-works projects shall make and keep vided without charge. Complete and accurate on which the individual’s service is to begin, records of all laborers, mechanics, and other records of the break periods shall be kept. An the individual is called to active military workers employed by them on such projects. employer who violates this legislation shall duty either pursuant to a declaration of war The records shall be kept for at least 3 years pay the hotel room attendant 3 times the by the Congress, the President, or (during a and shall include all job classifications, along regular hourly rate of pay for that position for declared emergency) the State Governor, or with other previously required information. each workday during which the required to quell civil insurrection, then, upon request The information in the records is to be sub- breaks were not provided. If an attendant is of the individual, the employer shall provide mitted monthly via a complete copy of a terminated, demoted, or otherwise penalized him or her with a written copy of the em- certified payroll to the public body in charge as a result of exercising his or her rights under ployment offer. The statement must include of the project. The certified payroll shall be this legislation and affirms that the employer at least the offer of work, the date on which accompanied by a signed statement from the was not acting in good faith when the attendant the services were to begin, the job title or contractor or subcontractor asserting that such was terminated, demoted, or otherwise penal- duties to be performed, the remuneration records are true and accurate, that the wage ized, then a rebuttable presumption shall arise offered, and the signature of the employer. rate for each worker is not less than the general that the defendant’s action was taken in re- If, upon honorable discharge from the prevailing hourly rate required by the State taliation, and the plaintiff shall be entitled to military or satisfactory completion of Prevailing Wage Act, and that the signatory is backpay, reinstatement, or injunctive relief. military service, the individual is still quali- aware that the filing of a false certified payroll Any person terminated in violation of the law fied to perform the duties of the position is a Class B misdemeanor. Contractors and shall recover triple his or her normal daily for which he or she was first offered em- subcontractors are required to make records compensation and fringe benefits. ployment, and if the individual applies for a available for inspection upon 2 days’ business Under the authority of the Employee position with the employer within 90 days notice. Blood Donation Leave Act, employees of after having been relieved from military The State Salary and Annuity Withholding units of local governments, of boards-of- service, then the individual shall be given Act was amended to permit an employee or election commissioners, or of private em- preference for employment with that em- annuitant to authorize the withholding of a ployers may, after obtaining approval from ployer. If circumstances have so changed as portion of his or her salary, wages, or annuity the employer, use up to 1 hour to donate blood to make it impossible or unreasonable for for the additional purpose of the payment of every 56 days in accordance with appropriate the employer to employ the individual im- fringe benefit contributions to employee nationally recognized medical standards. mediately, the individual shall remain eli- benefit trust funds. The authorization applies Any employer that employs between 15 gible to begin employment for a period of to State contractual employees hired through and 50 employees shall provide up to 15 days up to 1 year after the date the individual labor organizations and working pursuant to a of unpaid family military leave to an employee first notified the employer of his or her de- signed agreement between a labor organization during the time Federal or State deployment sire to perform the services in question for the and a State agency. This action is not intended orders are in effect. Any employer that employer. Nothing shall require an employer to limit employee benefit trust funds and the employs more than 50 employees shall to hold a job position open; violate any em- contributions to be made thereto, the purpose provide up to 30 days of unpaid family ployment law, collectively bargained employ- of which is to compute the prevailing wage in military leave under the same circumstances. ment recall, or other employment obligation; any particular locale. Rather, such employee The employee shall give at least 14 days’ or create additional employment opportu- benefit trusts are intended to include contri- notice of the intended date upon which the nities in order to be in compliance with this butions made to funds aimed at assisting in leave will commence if the leave will consist legislation. Monthly Labor Review January 2006 13 State Labor Laws, 2005 Indiana State Missing Person’s Clearinghouse. The the laws of this State shall be fined not more data and photo also may be obtained and than $15,000 and shall be imprisoned at hard Time off. Private employers are prohibited used by news-gathering organizations. labor for not more than 20 years. Finally, from disciplining an employee who is a volun- whoever commits the crime of human traf- teer firefighter or a member of a volunteer ficking when it involves a person under the age Louisiana of 18 shall be fined not more than $25,000 and emergency medical services association for being late to work when the employee is shall be imprisoned at hard labor for not less Child labor. Any minor employed to per- than 5 years or more than 25 years. Whatever responding to a fire or an emergency call. The form or render artistic or creative services under private employer may request proof that the the sentence imposed, 5 years of it shall be a contract subject to Chapter 32, Title 51, of without the benefit of parole, probation, or employee was engaged in fire-related or the State Revised Statutes of 1950 (Child emergency activity during his or her absence suspension. Performer Trust Act) for $500 or more shall be from employment and also may require the exempt from provisions covering compulsory employee to notify the employer of the Wages paid. There no longer exists a mone- school attendance for those days during which tary limit on the amount that an employer may expected absence before the scheduled start the minor is so engaged. Every contract exe- pay to the surviving spouse of a deceased time. Employers other than the State are not cuted by or on behalf of a minor shall require employee as a result of any wages, sick leave, required to pay salary or wages for volunteer that 15 percent of the gross earnings be placed annual leave, or other benefits due to the em- firefighting time away from employment, in a trust fund created for the benefit of the ployee, provided that neither spouse has insti- although other accrued benefits, such as minor in an institution authorized to transact tuted divorce proceedings. vacation or sick leave, may be paid. Private business in the State and that is federally employers may designate an employee as insured. Monies placed in a trust fund shall be essential and may reject the employee’s in a blocked account, and no funds shall be Maine notification of expected absence. Volunteer withdrawn prior to the date the minor attains firefighters who are disciplined by the State or the age of 18, unless the minor is determined to Child labor. Employees of tobacco specialty local government employer for being absent be in necessitous circumstances by a court of stores who engage in direct face-to-face sales from employment while responding to an competent jurisdiction. Subject to their legal of tobacco products must be at least 17 years emergency and who bring action against their status, both parents shall serve as trustees of of age. Those employees between 17 and 21 employer as a result of the discipline must do the trust, which must be established within 30 years of age may sell tobacco products in such so within 1 year after the date of the disci- days of the last day of employment, or else stores only while in the presence of an em- plinary action. the 15 percent shall be forwarded to the State ployee who is at least 21 years of age and is in (or to a trust fund in another State) where the a supervisory capacity. funds will be held in trust. If a minor is absent Kansas from school for 2 or more days within a 30- Discharge. An employer may not discharge day period, the employer shall employ a or take any other disciplinary action against an Human trafficking. Human trafficking is certified teacher to provide a minimum of 3 employee because of the employee’s failure to defined as the recruiting, harboring, trans- hours of educational instruction per day. report for work at the beginning of the em- porting, providing, or obtaining another person There must be a ratio of 1 teacher to every 10 ployee’s regular working hours if the employee by any means, knowing that force, fraud, students. failed to do so because he or she was respond- threat, or coercion will be used to cause the ing to an emergency as a volunteer firefighter person to engage in forced labor or involuntary Equal employment opportunity. A resolution and the employee reported for work as soon servitude. In addition, the definition encom- was adopted that authorized and directed the as reasonably possible after being released from passes any defendant who recruits persons State Commission on Employment of Mental the emergency. The employer may charge the under 18 years of age knowing that the person, Health Consumers to study and develop a plan lost time against the employee’s regular pay or with or without force, fraud, threat, or coercion, to address barriers that prevent persons with against the employee’s available leave time. will be used to engage in forced labor, involun- mental illness from seeking, obtaining, and This legislation does not apply to volunteer tary servitude, or sexual gratification. Aggra- maintaining employment. The commission firefighters who are absent from their regular vated trafficking is rated as a severity-level-1 shall submit its plan to the appropriate Senate employment as law enforcement officers, person felony. and House Committees and other appropriate utility workers, or medical personnel when the personnel prior to the convening of the 2007 services of those kinds of workers are essential Regular Session. to protect public health or safety. The em- Kentucky ployer shall be notified that the employee is Human trafficking. It shall be unlawful for not reporting to work at the appointed time, Worker privacy. A voluntary statewide a person to intentionally recruit, harbor, and at the employer’s request, the employer certified volunteer firefighter identification transport, provide, solicit, or obtain another should be provided with a statement from the program has been implemented that calls for person through fraud, force, or coercion to chief of the volunteer fire department stating the issuance of a color photo nondriver identi- provide services or labor. Whoever commits that the employee was responding to an fication card to all certified volunteer fire- the crime of human trafficking shall be fined emergency call. A violation of the law is action- fighters. The descriptive data and a photo of not more than $10,000 and shall be im- able by the employee and must be filed within the certified volunteer firefighter shall be stored prisoned at hard labor for not more than 10 1 year of the date of the alleged violation. If the in the State Driver’s License Information years. However, whoever commits the crime court finds that the employer violated the law, System and may be retrieved and used by of human trafficking when it includes the and if the employee so requests, the court shall public agencies subject to the provisions of services of commercial sexual activity or any order the employer to reinstate the employee the Driver Privacy Protection Act and the sexual conduct constituting a crime under in his or her former position without reduction 14 Monthly Labor Review January 2006 of pay, seniority, or other benefits. In addition, may (1) award damages equal to the wages, ensure that all State adults earn a liveable wage; the court shall order any other appropriate salary, employment benefits, or other com- (3) examine the efficacy of a State-earned remedy, including payment of back wages and pensation denied or lost to the employee by income tax credit that would enable working reinstatement of any other benefits, necessary reason of the violation; (2) order the employer families to meet their basic needs; (4) examine to return the employee to the position the to pay liquidated damages of $100 for each how increased access to education, training, employee would have been in had the violation day that the violation continued; and (3) order and childcare increases the likelihood of not occurred. This legislation does not apply the employer to pay an additional amount as earning a liveable wage, and identify means of if the employer and employee have entered liquidated damages if the employee proves to increasing such access; (5) identify the number into a written agreement that governs pro- the satisfaction of the court that the em- of people in the State who earn less than a cedures to be followed when the employee is ployer’s violation was willful. Finally, (4) the liveable wage; (6) examine how State policies called to respond to an emergency as a volun- court shall award reasonable attorneys’ fees and payments, including the Maine State Care teer firefighter. Upon receipt of notice of an and other costs of the action, to be paid by the program and other State health-care-related employee’s volunteer firefighter status, an employer. payments, increase the number of State resi- employer may designate the employee as Public or private employers with more than dents who earn less than a minimum wage; (7) essential to the employer’s operations and his 25 employees and who provide paid leave examine the economic impact of a liveable or her absence as disruptive to the employer’s under an employment policy or collective bar- wage on the State, including the potential business. gaining agreement shall allow an employee to effects that a mandated liveable wage would use the paid leave for the care of an imme- have on job creation or destruction and on the Drug and alcohol testing. A person who diate family member who is ill. The employer cost of goods and services (which, if driven performs a point-of-collection screening or may adopt a policy limiting the number of up, might in turn drive up the liveable wage); confirmation test may release the results of hours taken for this purpose, but in no case and (8) submit a report by December 7, 2005, that test only in accordance with the following may the number of hours allowed be fewer that sets forth findings and recommendations, stipulations: (a) if the test yields a preliminary than 40 in a 12-month period. The employee including suggested legislation for presentation positive or negative result, then the person may not use paid leave until it has been earned. to the legislature. performing the test shall immediately release An employee who receives more than one the result to the employee who is the subject type of paid leave may elect which type and Overtime. There is a salary test determining of the test; (b) if the test yields a preliminary the amounts of those types of paid leave to overtime pay for certain employees. A salaried positive result, then the result may not be use. Employers may require notice or veri- employee who works in a bona fide executive, released to the employer until after it has been fication of leave taken if such notice or veri- administrative, or professional capacity and confirmed in another test; (c) if the test yields fication is required when an employee takes whose regular compensation, when converted a preliminary negative result, then the result leave because of his or her own illness. Em- to an annual rate, exceeds 3,000 times the may not be released to the employer until after ployers may not discharge, demote, suspend, State’s minimum hourly wage or the annual- it has been confirmed in another test; and (d) a discipline, or otherwise discriminate against ized rate established by the U.S. Department confirmation test result shall be released imme- an employee, or threaten to take any of these of Labor under the Federal Fair Labor Stand- diately both to the employee who is the sub- actions against an employee, who exercises ards Act, whichever is higher, could be exempt ject of the test and to the employer. his or her right to use leave for the aforesaid from overtime. purposes. Equal employment opportunity. Civil rights Plant closing. School commissioners are protections have been extended to all people Immigrant protections. Employers in the prohibited from closing a school in unor- regardless of their sexual orientation. It is State who employ foreign laborers in a log- ganized territory (that which is not part of a unlawful for an employer, employment agen- ging operation must provide proof of the municipality) of the State, except in accord- cy, or labor organization to discriminate against employer’s ownership of any logging equip- ance with procedures and standards established any applicant or employee because of his or ment used by the laborers in the course of by rule by the State Department of Education. her sexual orientation. Employers, employ- employment, including proof of ownership of The rules must provide for a public hearing in the ment agencies, and labor organizations cannot at least one piece of logging equipment for area served by a school prior to the date of the attempt to elicit information about, make or every two foreign workers employed by the proposed closure of the school. keep a record of, or establish a policy regarding employer in the logging operation. This re- the sexual orientation of applicants or em- quirement does not apply to equipment for Prevailing wage. As amended, the State’s ployees. Nor can employers, employment which the U.S. Department of Labor, Division Revised Statutes now assert that any party agencies, or labor organizations ask questions of Foreign Labor Certification, has established who believes that there are more than 10 about sexual orientation on applications or a prevailing wage under the Federal Service workers employed in the State in a laborer, print notices indicating any preferences re- Contract Act of 1965 for persons using that worker, or mechanic trade or occupation for garding the sexual orientation of applicants or equipment. Employers who violate the re- which no wage and benefit rates were set on employees. quirement commit a civil violation for which a the basis of the previous survey may petition fine of not less than $1,000 or more than the director of the State Department of Labor Family issues. The judicial enforcement $5,000 may be assessed. for inclusion of that trade or occupation in a remedies available under the State Family supplemental survey. The director shall de- Medical Leave Act requirements were amend- Living wage. A State Study Commission termine whether the occupation or trade will ed. Civil actions may now be brought in the Regarding Liveable Wages has been estab- be used in the construction of public works appropriate court by an employee against any lished. The purpose of the commission is to and whether it is underrepresented in the employer, and the court may enjoin any (1) define what level of compensation consti- survey process. Once a determination has been practice that violates the law. The court also tutes a liveable wage; (2) identify ways to reached, the director may institute supple- Monthly Labor Review January 2006 15 State Labor Laws, 2005 mental survey processes to establish wage and fications for registration in the county. The without a license. Those who do so are benefit rates for the trade or occupation. The minor is not allowed to be employed for subject to an administrative civil fine of not supplemental survey must be coordinated with more than 5 consecutive hours without a more than $1,000. Each day a person oper- the regular survey and designed to minimize nonwork period of at least one-half hour. In ates without a license is a separate violation; the burden on any employer required to re- a calendar day, the total school and work however, the total administrative civil fine spond. hours of a minor may not exceed 12 hours, for continued noncompliance shall not ex- and the minor shall have at least 8 con- ceed $10,000. Wages paid. An employer’s payment of secutive hours that are not school or work wages or salary must be made at the rate hours. The State commissioner of labor may Wages paid. An employer or an agent of an previously established by the employer, grant a minor an exception to these re- employer may now pay wages to an employee except that the employer may decrease the strictions if the commissioner determines either by (a) direct deposit or electronic transfer rate of pay, effective the next working day, if that there will be no hazard to the health or to the employee’s account or by (b) issuance the employer gives notice to all affected welfare of the minor. Further, the 17-year- of a payroll debit card to the employee. An employees prior to the change. When an em- old who serves as an election judge may work employer or agent shall not make such direct ployer has temporarily increased an em- more than 12 hours on election day only, deposit or issue a payroll debit card to an ployee’s wage rate to comply with the pre- subject to consent from at least one parent employee without the full, free, and written vailing-wage requirements of the Federal or guardian. consent of the employee, obtained without Davis-Bacon Act or another applicable Federal intimidation, coercion, or fear of discharge or or State law, the employer need not provide Equal employment opportunity. Legis- reprisal for refusal to permit the deposit or the advance notice prior to returning the employee lation was enacted that created a State Equal issuance of the payroll debit card. However, to his or her regular wage rate, as long as the Pay Commission. The purpose of the com- as of January 1, 2005, an employer already employer is in compliance with all posting and mission is to study (1) the extent of wage paying wages by payroll debit card to one or notice provisions of the applicable law. disparities, in both the public and private more of its employees is permitted to pay At regular intervals not to exceed 16 days, sectors, between men and women and be- wages by payroll debit card to any other of its at a time made known to the employee, every tween minorities and nonminorities; (2) the employees without obtaining the described employer must pay in full all wages earned by factors that cause or tend to cause disparities consent. each employee. Payment of hourly wages or across and within occupations, the payment salaries must be made at the rate previously of lower wages for work in female-domi- Minnesota established by the employer. An employer may nated occupations, child-rearing respon- decrease the rate of pay, effective the next sibilities, the number of women who are Drug and alcohol testing. Employers may working day, if the employer gives notice to all heads of households, and workers’ edu- request or require employees to undergo affected employees prior to the change. Chang- cation, hours worked, and years on the job; random drug and alcohol testing only if (1) es in rates of pay made under a collective bar- (3) the consequences of the disparities on they are employed in safety-sensitive posi- gaining agreement are exempt from this re- the economy and on the families affected; tions or (2) they are employed as professional quirement. and (4) actions that are likely to lead to the athletes. In the latter case, if the professional elimination and prevention of the disparities. athlete is subject to a collective bargaining Worker privacy. Information technology The commission was required to file prelim- agreement permitting random testing, testing infrastructure and systems information that is inary findings, recommendations, and po- may be conducted only to the extent consistent to be protected from disclosure other than to tential solutions by September 30, 2005, with the agreement. the State Legislature or, in the case of a political while the final findings, recommendations, or administrative subdivision, to municipal and potential solutions shall be filed by September 30, 2006. Both preliminary and Employment agency. State statutes were offices or board members now includes per- amended to define the term “search firm” as sonal contact information concerning public final reports shall be filed with the Governor, the president of the senate, and the speaker “any person, firm, corporation, partnership, employees, except when that information is or association engaged in the business of public pursuant to other law. “Public em- of the house. management consulting, management search ployee” means “an employee of a govern- consulting, or personnel consulting.” A search mental entity,” but does not include elected Wages paid. The annotated code of the firm may be exempt from meeting certain officials considered for the purpose of releasing State was amended so that an employer may conditions pertaining to its being regulated as the information, while “personal contact now pay a wage to an employee by a credit an employment agency if (1) the search firm is information” means “home address, home tele- of the employee’s wage to a debit card or retained by the employer, acts on the em- phone number, home facsimile number, home card account from which the employee is ployer’s behalf, and receives compensation e-mail address, personal cellular telephone able to access the funds through withdrawal, only from the employer, subject to an agree- number, and personal pager number.” purchase, or transfer. Any applicable fees to ment stating the position to be filled; (2) no the debit card or card account must be candidate identified by the search firm will disclosed to the employee in writing in at Maryland least 12-point type. have to pay any kind of direct or indirect fee for the search firm’s services; (3) the search Child labor. A minor in the State who is at firm is not permitted to encourage anyone it least 17 years of age and who is too young to Michigan has placed with an employer to terminate be a registered voter may be appointed and employment with that employer; and (4) the serve as an election judge if the minor Agriculture. Persons may not operate, search firm is not permitted in any other way demonstrates to the satisfaction of the local cause to be operated, or allow an agricultural to act as an employment agency. In addition, board that he or she meets all other quali- labor camp to be occupied and used as such employers are prohibited from directly or 16 Monthly Labor Review January 2006 indirectly requiring an employee placed with more, may transport the goods without geo- covered in 49 CFR, part 40; (2) the testing the employer by a search firm to pay any of graphical restrictions. program, and (3) the collection, transport, the search firm’s fees. Employers now may initiate payment of chain of custody, and confirmation testing of wages to an employee by the transfer of nonurine samples. Also, the testing metho- Minimum wage. Every large employer (an electronic funds to a payroll card account, dology must be cleared by the Federal Food enterprise with an annual gross volume of but only after the employee has voluntarily and Drug Administration. sales made or business done of not less than consented in writing to that method of $625,000) was required to pay each employee payment. The employer must provide the Family issues. The State Department of wages at a rate of at least $6.15 per hour employee with a written disclosure that Administration or the administrative officer beginning August 1, 2005. Every small em- states the terms and conditions of the of any county, city, or political subdivision is ployer (an enterprise with an annual gross payroll card option, including a complete responsible for the proper administration of volume of sales made or business done that is itemized list of all fees that may be deducted all of the State employees’ annual, sick, jury less than $625,000) was required to pay each from the employee’s payroll card account duty, and military leave provisions and may employee at a rate of at least $5.25 per hour by the employer or the issuer of the card. promulgate rules necessary to achieve uniform beginning August 1, 2005. During the first 90 Consent of payment of wages by the trans- administration to prevent the abuse of State consecutive days of employment, an employ- fer of electronic funds to a payroll card time-off provisions. These provisions are (1) er may pay an employee under 20 years of age account shall not be a condition of hiring or absence with pay for a sickness suffered by a wage of $4.90 per hour. No employer may continued employment. The wages paid an employee or a member of the employee’s take any action to displace any employee, into the payroll card account must be immediate family; (2) the time that an em- including a partial displacement through a available for withdrawal by the employee ployee is unable to perform his or her job reduction in hours, wages, or employment up to the full amount of the employee’s duties because of physical or mental illness, benefits, in order to hire an employee at the wages. injury, or disability or maternity or pregnancy- wages authorized. related disability or medical care for the employee or the employee’s child; (3) parental Mississippi leave for a permanent employee; (4) quaran- Wages paid. Employees engaged in tran- tine resulting from exposure to a contagious sitory employment (for example, migrant Family issues. Certain employees of disease; (5) examination or treatment by a workers) that requires them to change their public universities who do not contribute licensed health care provider; (6) short-term place of abode because the employment is to the State’s public employees’ retirement attendance on the job, at an agency’s discretion, terminated either by the completion of the system or the university retirement program to care for a relative or household member un- work or by the employees’ being discharged are ineligible to receive major medical leave. til other care can reasonably be obtained; (7) or quitting must be paid within 24 hours. If necessary care for a spouse, child, or parent payment is not made by that time, the em- Inmate labor. Legislation was enacted that with a serious health condition as defined by ployer shall pay each such employee’s rea- extended the repeal of legislation regarding the the Family and Medical Leave Act; and (8) the sonable expenses of remaining in camp or use of goods made by out-of-State inmate death, or attendance at a funeral, of an im- elsewhere away from home while awaiting labor. Until July 1, 2007, privately operated mediate family member or, at an agency’s dis- payment of wages or earnings. If such wages correctional facilities cannot import certain cretion, another person. are not paid within 2 days after termination, goods manufactured by inmates housed in the employer shall additionally pay to the other States if Mississippi’s own prison in- employee a sum equal to 2 times the average dustries are manufacturing the same goods, Inmate labor. When a county establishes a amount of the employee’s daily earnings from unless the goods cost at least 30 percent less county jail work program authorized by the the time of termination until payment has been than Mississippi’s manufactured goods. board of county commissioners and super- made in full. Employers who fail to pay agreed- vised by the county sheriff, the sheriff may upon wage supplements or benefits within 30 permit inmates to work only on projects des- days after such payments are required by law Missouri ignated as public by the Board of County are guilty of a gross misdemeanor. When a Commissioners. Upon a request of a Federal court finds that an employer has failed to Other laws. Notwithstanding any other or State agency, city government, or nonprofit comply with the terms of an employment provision of law to the contrary, an employ- corporation, and upon mutually agreeable statement provided by the employer to the er shall be permitted to provide or contract terms or on their own action for county proj- worker or has failed to pay wages within the for health insurance benefits at a reduced ects, the board may designate projects as pub- required timeframe, the employer will be fined premium rate for employees who do not lic. Each calendar day in which a person $500 for each type of violation. smoke or use tobacco products. participates in a county jail work program is People transporting household goods for equal to 2 days of incarceration for the pur- either the Federal or State government or their Montana poses of serving a sentence of imprisonment. agencies are now exempt from a law currently An unexcused failure to appear for work at a in force which states that permit carriers Drug and alcohol testing. A revision of the time and place scheduled for participation con- cannot charge or receive compensation dif- approved workforce drug and alcohol testing stitutes the offense of escape. ferent from the rates named in their schedules, program now states that a “sample” includes including rates set by the commissioner of the a breath test or oral fluid obtained in a mini- Offsite work. Designated State agency State Department of Transportation. The mally invasive manner. Three items must be employees now may work from home or at an person is also exempt when transporting covered by procedural requirements at least alternative worksite for 1 or more days a week. household goods at the request of a non- as stringent as those in 49 CFR, part 40, of the Any alternative worksite must be within the profit charitable organization and, further- Code of Federal Regulations: (1) samples not State. Monthly Labor Review January 2006 17 State Labor Laws, 2005 Plant closing. State agencies are no longer or more calendar weeks in the current or ees who earn less than 1½ times the hourly required to pay the relocation expenses of em- preceding calendar year, any agent of such a minimum wage. Any disputes concerning the ployees whose positions are eliminated as a person, or any party whose business is fi- application of State overtime provisions to result of privatization, reorganization, a clo- nanced in whole or in part under the Nebraska those employees are within the jurisdiction of sure, or a reduction in force. Investment Finance Authority Act. This defi- the State labor commissioner. Existing State nition includes the State, its governmental law also exempts employees who earn 1½ Prevailing wage. In a prevailing-wage rate agencies, and its political subdivisions, regard- times more than the hourly minimum wage district, the standard prevailing-wage rate for less of the number of employees, but shall not from the State overtime provisions. Those construction services shall be used as the base include the United States, a corporation wholly employees and any disputes concerning the on which an apprentice wage is calculated. owned by the government of the United States, application of such Federal overtime require- or an Indian tribe. ments to the employees are within the juris- Time off. County officers who absent them- diction of the U.S. Department of Labor. The exemption from State overtime provisions for selves from the State because they are ordered Nevada employees who earn 1½ times the hourly to perform military service for more than 60 days (or for a period longer than 15 days, Department of labor. The State labor com- minimum wage or more is removed, thereby without the consent of the Board of County missioner enforces the laws and regulations placing the overtime requirement for those Commissioners) are now exempted from being governing the payment of prevailing wages for employees in State law and granting juris- required to forfeit their office due to their public-works projects. If the laws are violated, diction over disputes relating to overtime to absence. A State, city, town, or county em- the commissioner may impose an admin- the State labor commissioner rather than the ployee who is a member of the organized militia istrative penalty of not more than $5,000 for U.S. Department of Labor. of the State or who is a member of the orga- each violation after providing the person with nized or unorganized Reserve Corps or mil- notice and an opportunity for a hearing. In Prevailing wage. The State law regarding itary forces of the United States and who has addition, the commissioner may impose an public works was amended to stipulate that, been employed for a period of at least 6 administrative penalty against a governmental except as provided within the law, contractors months must be given a leave of absence with entity that violates the laws governing the or subcontractors shall pay a mechanic or pay accruing at a rate of 15 working days in a payment of prevailing wages for public-works workman employed by them on a public work calendar year. Military leave may not be projects. at a rate not less than 1½ times the prevailing charged against an employee’s vacation time, rate of wages applicable to the class of the and unused military leave must be carried over Hours worked. The provisions regarding mechanic or workman for each hour worked to the next calendar year, but such leave may hours of service for intrastate drivers were on the public work in excess of (1) 40 hours in not exceed a total of 30 days in any calendar amended. Hours-of-service limitations do not any scheduled week of work for the contractor year. apply to an intrastate driver if each of the or subcontractor, including, without limitation, following conditions is satisfied: (1) the driver hours worked for the contractor or subcon- is transporting property or passengers during tractor on work other than the public work; or Wages paid. In place of the former private- a state of emergency or disaster declared by an (2) 8 hours in any workday for the contractor purpose trust fund, a wage collection fund has elected official who is authorized by law to or subcontractor, including, without limitation, been established into which the commissioner make such a declaration; (2) the employer of hours worked for the contractor or subcon- of the State Department of Labor shall deposit the driver is a public utility; (3) within 1 work- tractor on work other than the public work. unpaid wages collected under State statutes. ing day after discovering or otherwise becom- ing aware of the existence of a public-utility Unfair labor practices. A medical facility or Nebraska emergency, the employer of the driver notifies any agent or employee thereof shall not retal- the Department of Public Safety that a public- iate or discriminate unfairly against an em- Child labor. The provisions of the State child utility emergency exists and informs the ployee of the facility or a registered nurse, labor statutes were amended. Persons under department as to when it commenced; and (4) licensed practical nurse, or nursing assistant 16 years of age shall not be employed or within 10 working days after receiving notifi- who is employed by, or contracts to provide permitted to work as a door-to-door solicitor. cation by the employer, the elected govern- nursing services for, the facility because the However, persons under 16 years of age who ment official determines and declares that the employee (1) reports to the immediate super- are engaged in the distribution or delivery of public-utility emergency exists, thus justifying visor, in writing, that he or she does not possess newspapers or shopping news may be the transportation of property or passengers the knowledge, skill, or experience to comply employed or permitted to work as a door-to- during the emergency in order to ensure the with an assignment to provide nursing services door solicitor of existing customers of such protection of the public health and safety by to a patient; and (2) refuses to provide a patient newspapers or shopping news. In addition, restoring the public-utility service or in order with nursing services for which, as verified by persons under 16 years of age are permitted to to otherwise provide assistance essential to documentation in the personnel file of the work as a door-to-door solicitor if they are the public. employee, registered nurse, licensed practical working on behalf of their own entrepreneurial nurse, or nursing assistant, the individual does endeavor. Overtime. The Federal Fair Labor Standards not possess the knowledge, skill, or experience Act sets forth the minimum overtime benefits to comply with the assignment, unless such Equal employment opportunity. The State required by Federal law; however, States are refusal constitutes unprofessional conduct. Revised Statutes were amended to define the allowed to provide employees with overtime term “employer” as meaning any person benefits that are equal to or greater than those Other laws. Persons who intend to locate or engaged in an industry who has 15 or more required under Federal law. Existing State law expand a business in the State may apply to employees for each working day in each of 20 requires the payment of overtime to employ- the Commission on Economic Development 18 Monthly Labor Review January 2006 for a partial abatement of one or more of for each subsequent violation. Administrative of being paid without a fee at a local financial the taxes imposed on the new or expanded penalties have been increased to not less than institution and voluntarily elects to use a business if, in addition to previously stip- $250 and not more than $500 for a first check-cashing service operating within the ulated requirements, the average hourly wage violation and not less than $500 and not more office of the agency. The agency must provide that will be paid by the new business to than $1,000 for each subsequent violation. an itemized statement showing each deduc- its employees in the State is at least 100 Advanced practice nurses are now in- tion. The deductions may not reduce a la- percent of the average statewide hourly cluded among the list of authorized medical borer’s wage below the Federal minimum wage or the average countywide hourly professionals who may sign a statement of wage. The agency cannot restrict the day wage, whichever is less, as established by physical fitness for minors who desire em- laborer from accepting a permanent position the Employment Security Division of the ployment and require working papers. with a third-party employer or restrict the State Department of Employment, Train- employer from making an offer to the day ing, and Rehabilitation on July 1 of each Human trafficking. A person commits the laborer. Agencies can collect placement fees fiscal year. crime of human trafficking if he or she know- from third-party employers. Violators of the ingly holds, recruits, lures, entices, harbors, Day Laborer Act are guilty of a misdemeanor. transports, provides, or obtains, by any means, After a second offense, they will be sentenced New Hampshire and fined no less than $250 and no more than including threats of serious bodily harm or physical restraint, another person to engage in $1,000 for each offense. The court may also Department of labor. The State com- order the offender to pay restitution. missioner of labor is empowered to hold sexual activity or to provide labor or services. hearings and investigate charges of violations In addition, the first person may not engage in any of the following behaviors: (1) use any Equal employment opportunity. A joint of the labor protection statutes either on its scheme or plan to cause someone to believe memorial has been passed requiring the own motion or on an employee complaint. that he or she is in danger of bodily harm; (2) executive task force on disability employment The period in which to file a wage claim is destroy, conceal, remove, confiscate, or pos- to develop policies, procedures, and guidelines extended from 18 months to 36 months from sess any passport, immigration-related docu- that can be used by State agencies to recruit, the date the wages were due. The civil penalty ment, or other government-issued document hire, retain, and promote persons with disabil- is increased from $1,000 to $2,500. that could be used to verify a person’s identity ities for positions in the State government. or age or other personal information; (3) The task force must report all developments Time off. Employers are now required to threaten to abuse the law or legal process; (4) to the appropriate committee, and all State allow employees who are victims of certain receive anything of value from participation agencies must abide by the policies. crimes to leave work to attend court or other in human trafficking as an organizer, su- legal or investigative proceedings associated pervisor, financier, or manager. The State Genetic testing. Genetic information is with the prosecution of the crime. Employers Office of Victim-Witness Advocacy or the defined as information about the genetic are not required to compensate an employee county prosecutor’s office shall ensure that makeup of a person or his or her family, who is a victim of a crime and who exercises the victim of human trafficking obtains as- including results from genetic testing, genetic his or her right to take such leave. Employees sistance in receiving any available benefits or analysis, DNA composition analyses, and may elect to use, or employers may require an services. participation in genetic research or the use of employee to use, the employees’ accrued paid genetic services. It is now unlawful for a vacation time, personal leave time, or sick person to use genetic information in employ- leave time. Before the employee may leave Minimum wage. As of October 1, 2005, the State minimum wage is set at $6.15 per hour. ment or recruiting. work for this purpose, he or she shall provide the employer with a copy of the notice of As of October 1, 2006, it will be $7.15 per hour. Political subdivisions of the State may Minimum wage. The State statute regarding each scheduled hearing, conference, or meeting the payment of wages for employees who that is provided to the employee by the court continue to pay rates over the minimum wage for vendors, contractors, and subcontractors. receive tips has been amended. Such an or agency responsible for providing such employee who regularly receives more than notice. Employers shall not discharge, threat- $30.00 a month in tips will be paid a minimum en, or otherwise discriminate against any em- Plant closing. A resolution was adopted hourly wage of $2.13. The tips combined with ployee regarding such employee’s compen- creating a commission to study the impact the cash wage cannot be at a rate less than $5.60 sation, terms, conditions, location, or privileges of outsourcing jobs into the State from per hour. of employment because the employee exer- offshore or out-of-State employers. cised his or her right to leave work for any of the purposes in question. Employers so doing Prevailing wage. The State prevailing-wage are subject to a civil penalty. New Mexico statutes were amended to specify that all construction, alteration, demolition, or repair Employment agency. Day labor service agen- contracts pertaining to public works, public New Jersey cies must pay laborers for each day and all buildings, or public roads of the State and hours worked. The agency must keep accurate amounting to more than $60,000 must contain Child labor. Child labor penalties assessed records of hours worked and wages paid for at provisions stating the minimum wage to be through the courts for violations of the State least 1 year after the entry of the record. The paid to laborers and mechanics. Wages must child labor laws have been increased from an agency also must compensate laborers in be paid not less than once a week. Wages will amount that was not less than $1,000 and not commonly accepted payment instruments be determined by the director of the Labor and more than $2,000 for a first violation. The payable in cash, on demand, at a financial Industrial Division of the State Department new assessment may not be less than $2,000 institution. Fees for cashing checks cannot be of Labor. The director may issue subpoenas for a first violation and not more than $4,000 charged unless the laborer is given the option for the production of documents or witnesses Monthly Labor Review January 2006 19 State Labor Laws, 2005 pertaining to public-works prevailing-wage vide the labor, (4) has the authority to hire and assessing civil penalties. The task force also projects. Violators will be placed on a list fire employees, (5) is paid upon the com- can receive training and request assistance distributed to all State departments, and for 3 pletion of projects, and (6) certifies to the from any State agency. years no contract or project will be awarded to public that the labor being provided is by an the persons or firms on this list. The violator independently established business. A busi- Employment agencies. Every licensed em- will be liable to any affected employee for ness is independently established when (1) the ployment agency under the jurisdiction of the unpaid wages and for liquidated damages, labor or services connected with it are per- State commissioner of labor and engaged in beginning with the first day of employment, at formed at a location separate from the person’s the job placement of domestic workers or a rate of $100 for each calendar day that the residence, (2) commercial advertising is pur- household employees shall provide each appli- firm required or permitted the employee to chased or the owner or manager of the business cant for employment, as well as his or her work in violation. The court may award attor- is a member of a trade organization, (3) the prospective employer, a written statement neys’ fees and costs to the employee. business telephone or e-mail listings are dif- indicating the rights of such worker and ferent from the owner’s or manager’s personal employee and the obligations of his or her Workplace security. The State Department listings, (4) labor or services are performed employer under Federal and State law. This of Motor Vehicles shall require an applicant pursuant to a contract for two or more persons shall be done before job placement is arranged. requesting a hazardous-material (“ H ”) within 1 year, or (5) the owner or manager of If the employment agency maintains a Web endorsement to be subject to a background the business assumes financial responsibility site, the text of such written statement shall check pursuant to the Federal Uniting and for errors in labor or services. A contractor who also be provided there. The rights and obliga- Strengthening America by Providing Appro- intentionally misclassifies an employee as an tions should include, but not be limited to, laws priate Tools Required to Intercept and independent contractor is guilty of a mis- regarding the minimum wage, overtime and Obstruct Terrorism (PATRIOT) Act of 2001. demeanor and can be fined no more than $5,000 hours of work, record keeping, Social Security Information received from the required and imprisoned for no more than 6 months. payments, unemployment insurance coverage, background check in compliance with the Convictions can lead to the suspension or loss disability insurance coverage, and workers’ Federal requirements shall be kept confidential of the contractor’s license. compensation. Every employment agency and shall be released only to the subject of the shall keep on file in its principal place of check and to the division. The State can look New York business for a period of 3 years a statement back 7 years to conform to the Federal De- signed by the employer of a domestic worker partment of Homeland Security rules for Child labor. The State labor law applying to or household employee whom the agency has conducting background checks. Before issuing the employment of minors was amended so placed with such employer, indicating that the a commercial driver’s license, the State that employers of any person claiming to be employer has read and understands the state- Department of Motor Vehicles shall obtain between 18 and 25 years of age who does not ment of rights and obligations. A similar state- pertinent driving record information from each present a duly issued employment certificate ment shall remain on file for the employee as State in which the applicant has been licensed. must require from such person and furnish, well. The State Department of Motor Vehicles has upon demand, to the State commissioner of the authority to exchange such commercial labor or the commissioner’s authorized rep- Genetic testing. The State law related to driver’s license information as it deems nec- resentative, proof of the age of such person. employment discrimination was amended by essary to carry out the State Commercial The proof may be in the form of a driver’s adding a prohibition to prevent employers Driver’s License Act. The results of a back- license, other documentation issued by the from soliciting or requiring, as a condition of ground check conducted pursuant to Federal Government of the United States or by any employment, application for employment, requirements shall be confidential; if the results State government located therein, or a certif- membership in a labor organization, or licen- are used as a basis for disqualifying the appli- icate of age issued to such person by an em- sure for a job or position, information from cant, then the applicant can protest, appeal, or ployment certificating official. Any person which a predisposing genetic characteristic can ask for consideration of mitigating cir- who knowingly violates this provision and any be inferred. In addition, employers are pro- cumstances. (The driver must have held a officer or agent of a corporation who know- hibited from buying or otherwise acquiring an commercial driver’s license under rules ingly permits the corporation to violate any individual’s genetic test results, any interpreta- promulgated by the department.) If there is an such provisions shall be guilty of a misde- tion thereof, or any other information from appeal, the department shall provide the meanor. Upon conviction, such person shall which a predisposing genetic characteristic can applicant with a copy of the procedures be fined not more than $500 and/or imprisoned be inferred. Finally, employers are prohibited established at the time the applicant applied for not more than 60 days for a first offense. A from making an agreement with an individual for the hazardous-material endorsement. second or subsequent offense shall result in a for that person to take a genetic test or provide fine of not more than $5,000 and/or imprison- genetic test results or any similar information. Other laws. Under the Construction Indus- ment for not more than 1 year. tries Licensing Act, when a contractor em- Hours worked. No driver of motor trucks ploys a person to provide labor or services for Department of labor. The State com- or buses shall drive more than 12 hours compensation, the person employed is defined missioner of labor is now authorized to estab- following 8 consecutive hours off duty, and as an employee of the contractor, not as an lish a Fair Wages Task Force to enforce the no driver shall drive for any period after independent contractor. An independent regulations affecting employees in manu- having been on duty for 15 hours following contractor is defined as a person who (1) is facturing, service, and other State industries in 8 consecutive hours off duty. Every driver free from direction and control over the means which employees may be exploited. The task of such vehicles shall have at least 24 con- and manner of providing the labor services, (2) force can investigate and conduct inspections secutive hours off duty in every period of 7 is responsible for obtaining business licenses, of employers’ books, records, and premises consecutive days, and in no event shall such (3) furnishes the equipment necessary to pro- and ensure compliance by such industries by a driver be on duty for more than 75 hours in 20 Monthly Labor Review January 2006 any period of 7 consecutive days. However, or payroll, but may, at any time thereafter, inspection and examination, except to the this requirement shall not apply to drivers examine the voucher or payroll and revoke employee, an applicant for employment, or a engaged in the actual restoration or pres- any previous certification not made in ac- former employee (or his or her properly au- ervation of electric, water, telephone, gas, cordance with the law. In any action against thorized agent). A public official or employee or steam service during an emergency. Still, the appointing officer, revocation of such who knowingly, willfully, and with malice the exemption shall not apply unless the certification shall be presumptive evidence permits any person to have access to informa- driver is engaged in the actual restoration or that the certification was improper in the tion contained in personnel files is guilty of a preservation of said services and shall have respects not held to be proper by the com- Class 3 misdemeanor and, upon conviction, had a period of rest to ensure his or her abil- mission. shall be fined an amount not in excess of $500. ity to drive safely. Any person not specifically authorized to have access to a personnel file who knowingly Time off. A volunteer firefighter on leave of and willfully examines such a file in its official Inmate labor. Any person convicted of a absence may perform services and duties as a felony committed prior to December 27, filing place or who removes or copies any volunteer firefighter during any period in which 2004, and sentenced thereon to an inde- portion of the file shall be guilty of a Class 3 the Armed Forces of the United States grant misdemeanor as well. terminate term of imprisonment may receive the volunteer firefighter a temporary leave a merit time allowance, in addition to the from military service, provided that such standard allowances for meritorious be- services and duties would not violate any law, North Dakota havior, not to exceed one-sixth of the mini- regulation, rule, or order of the United States mum term or period imposed by the court. or the Armed Forces. The volunteer firefighter This allowance is contingent upon the Equal employment opportunity. If an em- on such temporary leave may not be required ployment discrimination claim proceeds to inmate successfully maintaining employ- to perform services and duties as a volunteer ment while in a work release program or a hearing, the employee may be accom- firefighter. panied, advised, and represented by a repre- any other continuous temporary-release program for a period of not less than 3 sentative of his or her choice. However, months. North Carolina neither the State Department of Labor nor the State’s attorney general may represent Drug and alcohol testing. The employer of the aggrieved person. Minimum wage. A person who is at least 18 years of age may serve as a volunteer at any employee who operates a commercial a recreational or amusement event run by a motor vehicle, who is subject to Federal drug Wages paid. Every employer shall pay all business that operates such events, pro- and alcohol testing, and who tests positive in wages due to employees at least once each vided that no single such event lasts longer a required drug or alcohol test shall notify the calendar month on regular paydays agreed than 8 consecutive days and no more than State Division of Motor Vehicles in writing upon by employer and employees and desig- one such event concerning substantially the within 5 business days following the em- nated in advance by the employer. Wages must same subject matter occurs in any calendar ployer’s receipt of confirmation of a positive be drawn on banks or credit unions convenient year. The relevant business shall notify all drug test. The notification shall include the to the place of employment, with direct volunteers in writing that, by volunteering driver’s name, address, driver’s license number, deposit in the financial institution of the their services, they are waiving their right to Social Security number, and results of the drug employee’s choice. Wages may now be pro- receive the minimum wage. Such notice shall or alcohol test. Upon receipt of notice of a vided to employees in the form of a stored be signed and dated by a representative of positive drug or alcohol test, the division shall value card; however, such cards must be issued the business and the volunteer and kept on (1) disqualify the driver from operating a by a federally insured bank or credit union. file by the business for 36 months. commercial motor vehicle until it receives The value of the funds underlying a stored proof that the driver has been assessed and value card that is used by an employer to pay Prevailing wage. After entering into a public successfully treated by a substance abuse wages must be a deposit that is insured by the contract or a subcontract to perform on such a professional; and (2) place a notation on the Federal Deposit Insurance Corporation or contract, persons or corporations that will- driving record of the driver that shall be retained National Credit Union Administration. Before fully pay or provide less than the stipulated for 2 years after the termination or disquali- paying wages to an employee via a stored wage scale or supplement shall be guilty of a fication of the driver. Following the receipt of value card , the employer must have deposited misdemeanor and, upon conviction, be pun- a positive test, the division shall notify the with the issuer funds in an amount at least ished for a first offense by a fine of $500 and/ driver of his or her pending disqualification equal to the wages due from the employer to or imprisonment for not more than 30 days. and right to a hearing if requested within 20 each employee whose wages are being paid Conviction of a second offense carries a fine days of the date of the notice. If the division through the stored value card, plus all appli- of $1,000, and in addition thereto, the contract receives no request for a hearing, the dis- cable account fees. on which the violation occurred shall be qualification shall become effective at the end forfeited. of the 20-day period. If the driver requests a Worker privacy. Legislation was enacted In cities with a population of 1 million or hearing, the disqualification shall be stayed that expands the exchange of information more, the municipal civil service comission pending the outcome of the hearing, which regarding unemployment insurance. The State may grant permission to a city agency or shall be limited to issues of testing procedure Job Service may now enter into interagency department to certify directly to the dis- and protocol. agreements to exchange information in an bursing or auditing officer that the persons effort to enhance the administration of the named in the certification are employed in Worker privacy. All information contained unemployment insurance program. The State their respective positions. In such cases, in a school employee’s personnel file is Department of Human Services and the the commission need not verify any voucher confidential and shall not be opened for Driver’s License Division of the State Depart- Monthly Labor Review January 2006 21 State Labor Laws, 2005 ment of Transportation are now included in employee is subject to losing such annual leave through spiritual means, including, but not the exchange of information. due to the application of the accumulation limited to, a Christian Science practitioner. limits in the State statutes. Other laws. Legislation was enacted that Minimum wage. Continuing a series of changed the language of the State code to Wages paid. When an employee’s em- increases based upon changes in the Consumer broaden the definition of “scope of employ- ployment terminates, the employer shall pay Price Index, the State minimum wage was ment” in regard to claims made against the the employee’s wages in full, less offsets and increased to $7.50 per hour on January 1, State. The director of the State Office of Man- less any amount over which a bona fide dis- 2006. agement and Budget may now settle claims agreement exists. In order to successfully allege over $10,000 with approval from the State a bona fide disagreement over the amount of Overtime. A hospital may not require a Attorney General. The director may settle wages, the employer shall pay such amount as registered nurse, licensed practical nurse, or claims under $10,000 independently. the employer concedes to be due, without certified nursing assistant to work (1) beyond condition, within the time required, and pro- the agreed-upon shift, (2) more than 48 hours vide to the employee, within 15 days of receipt in any hospital-defined workweek, or (3) more Ohio of either a wage claim form from the State than 12 consecutive hours in a 24-hour period. Department of Labor or a certified mail receipt A hospital may require an additional hour of Inmate labor. When prisoners or adult of- of written demand from the employee, a work beyond the 12 hours if a staff vacancy fenders working on a work detail administered written explanation of the relevant facts and/ for the next shift becomes known at the end of by a county correctional facility and located or evidence which supports the employer’s the current shift or if an assigned patient may outside the facility have volunteered for the belief that the wages in dispute are not owed. be harmed if the nurse or nursing assistant work detail and are imprisoned or reside in the If the employer fails to pay the wages as leaves the assignment or transfers care to an- facility for an offense other than a felony of required, the employer shall be additionally other. Time spent in required meetings or the first or second degree, a qualified immunity liable to the employee for liquidated damages receiving education or training shall be included from civil damages is granted to a sheriff, in the amount of 2 percent of the unpaid wages as hours worked; however, time spent on call, deputy sheriff, or county correctional officer per day after the day the wages were due and but away from the premises of the employer, and to the county in which the prisoners or earned if the employer willfully withheld may not be included as hours worked. When offenders work on the work detail and that wages over which there was no bona fide dis- the nurse or nursing assistant is required to be employs the sheriff, deputy sheriff, or officer. agreement. at the premises of the employer, time spent on For the immunity to be in effect, the municipal call or on standby shall be included as hours or county correctional officer must have pro- Worker privacy. The Council on Law En- worked. vided prior notice of the bill’s immunity provisions to each prisoner or adult offender forcement Education and Training can release on the work detail. The immunity from liability copies of the records of any peace officer who Prevailing wage. State law now stipulates is granted for injury, death, or loss to person or is the subject of an investigation to any law that, on projects regulated under the Federal property caused or suffered by the prisoner or enforcement agency conducting the investi- Davis-Bacon Act, individuals employed as adult offender working on the work detail, gation. The agency that is to receive the copies flaggers are no longer required to be paid a unless the injury, death, or loss results from must provide a written request in order for prevailing-wage rate as determined by the malice or wanton or reckless misconduct on them to be released. commissioner of the State Bureau of Labor the part of the sheriff, deputy sheriff, or county and Industries, as long as the contract price correctional officer. does not exceed $25,000. Oregon Employers shall give notice in writing to employees who work on a contract for serv- Prevailing wage. By law, threshold amounts Agriculture. Farm labor contractors must ices, either at the time of hire or before the for contract coverage under the State pre- submit certified payroll records to the com- commencement of work on the contract, or by vailing-wage law are adjusted every 2 years missioner of the State Bureau of Labor and posting a notice in a location frequented by according to the change in the Census Bureau’s Industries. employees, of the number of hours per day Implicit Price Deflator for Construction, pro- and days per week that the employees may be vided that no increase or decrease exceeds 6 Family issues. The State Family Leave required to work. Except for individuals ex- percent for the 2-year period. As a result, Statute was amended to clarify the definition empted by the State Revised Statutes, every effective January 1, 2006, the threshold amount of a health care provider to include a person public contract must contain a proviso that a for new construction rose from $65,843 to who is performing within the scope of his or person may not be employed for more than 10 $69,853, and the threshold amount for recon- her professional license or certificate. The hours in any one day or 40 hours in any one struction, remodeling, or renovation increased definition now includes, among others, (1) a week, except in case of necessity or emergency from $19,752 to $20,955. licensed registered nurse who is certified by or when the public policy absolutely requires the State Board of Nursing as a nurse midwife it. In such cases, the employee shall be paid at Oklahoma practitioner; (2) a chiropractic physician licensed least time-and-a-half pay. by the State, but only to the extent that he or Before starting work on a contract or Time off. The State Merit System was she provides treatment consisting of manual subcontract for a public-works project, a amended to show that any State employee manipulation of the spine to correct a sub- contractor or subcontractor shall file a public- receiving compensatory time consistent with luxation demonstrated to exist by x rays; and works bond with the Construction Con- the provisions of the Fair Labor Standards Act (3) a person who is primarily responsible for tractors Board, together with a corporate sur- shall exhaust such compensatory time prior to the treatment of an eligible employee or a ety authorized to do business in the amount of the taking of annual leave, except where the family member of an eligible employee solely $30,000. The bond must assert that the con- 22 Monthly Labor Review January 2006 tractor or subcontractor will pay claims than 48 hours’ notice, excluding Saturdays, of the public agency employing the eligible ordered by the State Bureau of Labor and Sundays, and holidays, of his or her intention employee. Further, upon receipt of a request Industries to workers performing labor on to quit employment. If the employee has not and verification, the department shall remove public-works projects. The bond must remain given notice, the wages become due and the address of the employee’s residence from in effect continuously until depleted, unless payable within 5 days, excluding Saturdays, its records and substitute instead the address the surety cancels the bond sooner. The surety Sundays, and holidays, after the employee has of the public agency employing the individual. may cancel the bond by giving 30 days’ writ- quit or at the next regularly scheduled payday The department shall indicate on the records ten notice to the contractor or subcontractor, after the employee has quit, whichever comes that the address shown is an employment to the board, and to the bureau. The can- first. If the employee has not given the address. cellation does not limit the surety’s liability employer notice, and if the employee is The disciplinary records of a school em- for work performed on contracts entered into regularly required to submit time records to ployee convicted of a crime are not exempt before the cancellation. Neither contractor nor the employer to enable the employer to from disclosure. When a school employee is subcontractor is required to file a separate determine the wages due the employee, then, convicted of a crime, the education provider bond for each public-works project for which within 5 days after the employee has quit, that is the employer of the employee shall they have a contract. A person that is not excluding Saturdays, Sundays, and holidays, disclose the disciplinary records of the em- required to pay prevailing-wage rates on a the employer shall pay the employee the ployee to any person upon request. Prior to public-works project is not required to file a wages the employer estimates are due and such disclosure, however, an education pro- public-works bond. For 1 year after cer- payable. Within 5 days after the employee vider shall remove from the record any per- tification, a disadvantaged, minority, women’s, has submitted the time records, excluding sonally identifiable information that would or emerging small-business enterprise may Saturdays, Sundays, and holidays, all wages disclose the identity of a child, a crime victim, elect not to file a public-works bond as earned and unpaid become due and payable. or a school employee who is not the subject of required and shall give the board written Penalties may not be assessed when an em- the disciplinary record. verification of the certification, as well as ployer pays an employee the wages the A health professional regulatory board shall written notice that the business enterprise employer estimates are due and payable and keep confidential and not disclose to the public elects not to file the bond. When a business the estimated amount of wages paid is less any information obtained as part of an inves- enterprise elects not to file a public-works than the actual amount of earned and unpaid tigation of a licensee or an applicant for a bond, a claim for unpaid wages may be made wages, as long as the employer pays the em- license. If, however, the board votes to issue a against the payment bond of the business ployee all wages earned and unpaid within 5 notice of intent to impose a disciplinary enterprise or, if the business enterprise is a days after the employee submits the time sanction, then, upon written request by the subcontractor, the payment bond of the records, excluding Saturdays, Sundays, and licensee or applicant, the board shall disclose contractor. An election not to file a public- holidays. to the individual all information it has obtained works bond expires 1 year after the date the in the investigation, except information (1) that business is certified, and before starting or Whistleblower. Upon receiving a prospec- is privileged or confidential under any other continuing work on a contract or subcontract tive or existing employee’s complaint of law, (2) that would permit the identification for a public-works project, the business shall discrimination regarding an employment of any person who provided information that file a public-works bond with the board as safety issue, the director of the State Depart- led to the filing of the notice and who will not required. When an investigation indicates that ment of Consumer and Business Services, or provide testimony at a hearing arising out of a subcontractor’s workers have not been paid his or her authorized representative, shall the investigation, (3) that would permit the in full at the prevailing-wage rate or at overtime notify the complainant of the determination identification of any person who made a wages, the bureau commissioner has a right of regarding the complaint within 90 days of complaint to the board about a licensee or action first on the subcontractor’s public- receipt of the complaint. The complainant also applicant, and (4) that consists of reports of works bond and then for any amount of a shall have a right to bring a civil action through expert witnesses. The board may establish claim not satisfied by the bond. If the State an employment safety lawsuit in any circuit reasonable fees to reimburse the actual cost of prevailing-wage rate is higher than the Federal court of the State if the civil action is filed disclosing the information. prevailing-wage rate, the contractor and every within 1 year after the complainant has rea- subcontractor on the project shall pay at least sonable cause to believe that a violation has the State prevailing-wage rate. If the Federal occurred, unless a complaint has been filed Pennsylvania prevailing-wage rate is higher than the State in a timely manner under a separate State prevailing-wage rate, the contractor and every statute. Worker privacy. The State statute dealing subcontractor shall pay at least the Federal with employer immunity for disclosure of prevailing wage rate, as required by the Davis- Worker privacy. An eligible public employee information regarding former or current em- Bacon Act. (a public employee who works for the State ployees was amended. An employer who Board of Parole and Post-Prison Supervision, discloses information about a current or Wages paid. When, by mutual agreement, the director of the State Department of Cor- former employee’s job performance to a an employer discharges an employee, all of rections institutions, a parole and probation prospective employer of the current or former the employee’s wages are due and payable not officer, a police officer, an employee of the employee upon request of that employer is later than the first business day after the State Department of Agriculture, or an em- presumed to be acting in good faith and, unless termination. When an employee who does not ployee of any of a number of other State lack of good faith is demonstrated by clear and have a contract for a definite period quits agencies) may request that any driver- or convincing evidence, is immune from civil employment, all of the employee’s wages vehicle-related record kept that contains or is liability for such disclosure or its conse- become due and payable immediately if the required to contain the address of the em- quences in any case brought against the employee provided the employer with not less ployee’s residence contain instead the address employer by the current or former employee. Monthly Labor Review January 2006 23 State Labor Laws, 2005 Rhode Island harassment. Such individuals are responsible Training for each calendar day of noncom- for actions that, among other things, develop, pliance. Child labor. All certificates of age and per- promote, monitor, implement, and maintain mits relating to the qualification of children equal employment opportunity policies and Time off. The section of the State General employed in any factory or manufacturing or practices within their agencies and that (1) do Laws entitled “Employment of Women and business establishment shall be kept by the not discriminate against any employee or Child” and involving the continuous employ- employer at the place where the child is em- applicant for State employment; (2) establish ment of women and children was amended to ployed and shall be shown to the compliance guidelines to prevent discrimination and sexual specify that all employees are entitled to a 20- inspectors on their demand. Any proprietor or harassment; (3) identify and promote employ- minute mealtime within a 6-hour work shift manager who fails to produce or refuses to ment opportunities for qualified individuals and a 30-minute mealtime within an 8-hour show the certificates to any compliance in- who historically have been underutilized in the work shift. An employer shall not be required spector shall be fined $100 for each offense. State government workforce; and (4) describe to compensate an employee for this mealtime. The Hazardous Occupations listing was modi- notice and filing provisions that enable any The legislation is not applicable to an employer fied so that any minor under 16 years of age employee or applicant for State employment of a licensed health care facility, or any other may not be employed or permitted to work on who believes that he or she has been discrimi- employer, who employs fewer than three any private or public docks; in warehouses or nated against or sexually harassed to report people on any shift at the work site. storage rooms; dispensing gasoline or other such conduct to appropriate officials. All types of fuel; checking or changing oil or other agency directors are to appoint an individual Worker privacy. No employer may cause an fluids; as parking lot attendants; or as a car- as the agency’s equal employment opportunity audio or video recording to be made of an washer either by hand or machine, including officer and American with Disabilities Act employee in a rest room, locker room, or room drying vehicles by hand. Every person who coordinator. designated by an employer for employees to willfully employs a minor, and every parent The State Department of Administration change their clothes, unless such activity is or guardian who permits any child to be so has established the Human Resources Out- authorized by court order. No recording made employed, in violation of the provisions of the reach and Diversity Office, with the purpose in violation of this legislation may be used by Hazardous Occupation listing shall be fined of working toward developing a business case an employer for any purpose. In any civil $100 for each offense. Any person or cor- for equity on building a diverse workforce to action alleging a violation, the court may award poration that either employs a child younger guarantee fair and reasonable opportunities for damages and reasonable attorneys’ fees and than 16 years of age without the appropriate public service. A business case includes, among costs to a prevailing plaintiff and may afford legal permit or makes a false statement in regard other things, analyses of the current workforce injunctive relief against any employer that to any part required by the certificate of age and the needs or problems associated with the commits or proposes to commit a violation. shall be fined $500 for each offense. However, issue of workforce diversity, as well as pro- Any rights and remedies shall be in addition if a child employed in violation of the age posed alternative solutions to those problems. to, and not supersede, any other rights and requirement is injured or killed in the course of The responsibilities of said office shall include remedies provided by statute or common law. the employment, then the fine may be (1) developing guidelines and best practices increased to $5,000. for the promotion of diversity; (2) providing guidance and technical support to State en- South Carolina tities; (3) developing a strategic and focused Department of labor. The State Department recruitment and tracking initiative for indi- Employment agency. Applicants, and any of Labor, which collects quarterly wage infor- viduals interested in State employment; (4) controlling person, for employment agency mation from employers that includes employee initiating training seminars, including a diversity licenses must have at least 2 years of other names, Social Security numbers, total wage awareness program, to share the benefits of related industry experience as approved by payments, and other necessary information, diversity and encourage a culturally sensitive the State Department of Consumer Affairs may provide quarterly wage information to workforce environment; and (5) submitting an before the initial license is issued. However, an the U.S. Census Bureau for the purpose of annual benchmark report to the director of the applicant for a nonresident restricted license that agency’s participating in a joint local Department of Administration or his or her may be issued a license without the necessary employment dynamics program with the designee. 2 years of experience. Effective for licenses Bureau of Labor Statistics. issued after September 30, 2005, key manage- Prevailing wage. Each contractor awarded a ment personnel of all licensees must complete Employee leasing. A resolution was adopt- contract for public works with a price in excess at least 8 hours of continuing professional ed that authorized the Special House Com- of $1,000, and each subcontractor who education annually. A licensee or controlling mission to Study Temporary Workers performs work on those public works, shall person shall notify the department within 30 Throughout the State of Rhode Island to post, in conspicuous places on the project on days of any felony conviction or civil judgment continue its study and make a report to the which covered workers are employed, posters entered against him or her. The department State House of Representatives on or before that state the current prevailing-wage rates, the may take disciplinary action against a licensee March 1, 2006. Said commission shall expire prevailing rates of payments to the funds or a person engaging in professional employer on May 1, 2006. required to be paid for each craft or type of services without a license and deny an appli- worker employed in order to execute the cation or revoke, restrict, suspend, or refuse to Equal employment opportunity. The State contract, and the rights and remedies of any renew a license. implemented an order stipulating that all State employee for nonpayment of any wages agency directors, senior staff, and supervisory earned pursuant to the contract. Any con- Time off. The State Code was amended by employees are responsible for ensuring that all tractor or subcontractor who fails to comply the enactment of the Volunteer Firefighter and aspects of State programs they manage are shall be deemed guilty of a misdemeanor and Emergency Medical Services Personnel Job available without discrimination or sexual shall pay $100 to the director of Labor and Protection Act. Under the Act, an employer 24 Monthly Labor Review January 2006 may not fire an employee who is a volunteer Employment agency. Employee or staff corporation, a firm, a company, an associa- firefighter who does not receive monetary leasing companies may sponsor and maintain tion, and any other business entity. compensation for services to a fire authority, employee benefits and welfare plans for the nor may the employer fire a volunteer emer- benefit of their leased employees. The self- gency medical services employee who does insured plans developed under this section are Texas not receive monetary compensation for serv- not subject to the premium taxes as defined ices to a first-responder agency, an organized under State Code. The State General Assem- Agriculture. District courts may, for good rescue squad, or a county emergency medical bly recognizes that it was not its intent to cause shown in a hearing and on application services system and who does not work for subject to liability employee or staff leasing by the State Department of Housing and another related entity for monetary com- companies, or groups, that have offered or Community Affairs regarding a migrant agri- pensation. In addition, the employer may not will offer their leased employees employee cultural worker or the worker’s representative, fire such employees when they act as vol- benefit and welfare plans for the payment of grant a temporary or permanent injunction to unteer firefighters or volunteer emergency insurance premium taxes. The provisions of prohibit a person, including a person who medical services personnel as part of the this legislation are retroactive to April 22, owns or controls a migrant labor housing firefighter mobilization plan while responding 1996. facility, from violating the State Safety and to a state of emergency declared by the Presi- Health Code. dent of the United States, or by the State Gov- Family issues. The State Code relating to ernor if the emergency is in a county in the family leave was amended to provide that Child labor. The State Labor Code was State. employees who have been employed full time amended to require that juveniles be at least by the same employer for at least 12 consecu- 11 years of age in order to engage in the tive months at a permanent jobsite or location delivery of newspapers. The amended code South Dakota may be absent from such employment for a also redefined the term “delivery of news- period not to exceed 4 months for adoption, papers” so that it includes only the distri- Drug and alcohol testing. Legislation was pregnancy, childbirth, and nursing an infant, bution of newspapers on, or the maintenance enacted that establishes and implements a where applicable. Employees shall be returned of, a newspaper route and not direct sales to drug-screening program for applicants to to their previous or similar positions with the the general public. certain State facilities. Any announcements or same status, pay, and benefits if they have advertisements regarding available positions given their employer at least 3 months’ ad- Inmate labor. An individual who is assessed at those facilities must include requirements vance notice of their anticipated date of a conviction for a misdemeanor and confined of the drug-screening program. Applicants departure for such leave. If a medical emer- to jail for more than 1 day, or who is unable to may have access to the test results upon writ- gency or the timing of the notice of adoption pay the fine and costs adjudged against him or ten request, and the results will be revealed prevents the employee from providing the 3 her, or who is sentenced to jail for a felony and only with authorization by the commissioner months’ advance notice, the employee shall is confined in jail after his or her conviction of the State Bureau of Personnel. Any person not forfeit his or her rights and benefits solely shall be required to work in the county jail who releases the information without au- because of failing to provide the required industries programs or be required to perform thorization is guilty of a Class 2 misdemeanor. advance notice. Such leave may be with or other manual labor. Such an individual may be The commissioner may release the drug- without pay at the discretion of the employer. put to labor upon maintenance projects for a screening rules with regard to substances being The amended code does not apply to em- cemetery that the commissioners’ court (part screened, the procedures, confidentiality, and ployers with fewer than 100 full-time em- of the State Department of Criminal Justice) the consequences of receiving positive test ployees on a permanent basis at the jobsite or uses public funds, county employees, or coun- results. location, nor does it affect any bargaining ty equipment to maintain. In addition, the agreement or company policy that provides individual may be put to labor providing Tennessee greater benefits than those required under maintenance and related services to a nonprofit this section of the State code. organization that qualifies for a tax exemption under Section 501(a) of the Internal Revenue Drug and alcohol testing. An amendment Code, provided that the nonprofit organi- to the State Code prohibits a newly hired Prevailing wage. The termination date of the Prevailing Wage Commission has been zation furnishes a public service to the county employee or an existing employee who works or some other political subdivision in the full time or part time, or a substitute employee, extended until June 30, 2009. State. of a child care agency or a contractor or other At the discretion of the commissioner’s persons or entities from (1) providing any Worker privacy. All records, employment applications, credentials, and similar docu- court, a county may permit the use of public form of transportation services for compen- ments obtained by any person in con- funds, county employees, county inmate sation to the childcare agency or (2) engaging junction with an employment search for a labor, and county equipment to open and close in any form of driving services involving children in a childcare agency, until the director of schools or any chief public ad- graves at cemeteries maintained under the State employee or substitute employee has ministrative officer shall, at all times during Health and Safety Code. undergone a drug test and the results are business hours, be open for personal in- negative for illegal drug use. An exception to spection by any citizen of the State, and Wages paid. The State Workforce Com- this amendment to the code is emergency those in charge of such records shall not mission shall establish one or more impartial transportation requirements that may occur refuse the right of inspection to any citizen, wage claim appeal tribunals to hear and decide in limited circumstances as deemed appro- unless otherwise provided by State law. For disputed wage claims if the commission priate by the State Department of Human purposes of this State Code Annotated, the determines that establishing those tribunals is Services. term “person” includes a natural person, a necessary to ensure the prompt disposal of Monthly Labor Review January 2006 25 State Labor Laws, 2005 wage claim cases on appeal. Either party may criminal law or child protective services include a computation of baseline data request a hearing before a wage claim appeal matters. pertaining to the cost of living and the current tribunal to appeal a preliminary wage de- Each daycare center, group daycare home, wage levels within various sectors of the termination order. If the commission, a com- and family home is now required to post a economy. Among other aspects of the report mission examiner, or the wage claim appeal list of all current employees at the center or will be the following: (1) a set of basic-needs tribunal determines that an employer or an home in accordance with rules adopted by budgets for various household configurations employee acted in bad faith in bringing a wage the executive commissioner of the State for the previous year, to calculate the amount claim, an administrative penalty may be as- Department of Health. of money needed to maintain a decent standard sessed against the party who acted in bad of living in the State; (2) a list of changes in the faith. Federal minimum wage and in the wages for Utah this and surrounding comparable States; and Worker privacy. Certain applicants for (3) recommendations for changes or revisions Employment agency. A person may now positions in the State Department of Public in the methodology used to determine the recover twice the amount of money paid Safety are to be administered polygraph basic-needs budget calculations. Also, at least to an employment agent as a commission examinations. This legislation does not au- every 2 years, the Joint Fiscal Committee shall in advance. An agent can be fined no more thorize the department to require an officer, review the methodology used to calculate the than $200 for each advance that is unlaw- a peace officer, or a police communications basic-needs budget and, after public comment, fully received. operator already commissioned by the make any necessary and appropriate revisions. department to take a polygraph examination. Minimum wage. Cities, towns, and However, before commissioning an appli- counties of the State may not give pref- Minimum wage. Continuing a schedule of cant as a peace officer or employing an appli- erential treatment to contracts with per- legislated increases, an employer shall not cant for a police communications operator sons who pay their employees above the employ an employee at a rate less than $7.25 position, the department shall require the Federal minimum wage, unless the em- per hour beginning January 1, 2006. Beginning applicant to submit to the administration of ployees are contracted to work on a feder- January 1, 2007, and on each subsequent a polygraph examination. The examination ally funded project which requires that January 1, the minimum-wage rate shall be may be administered only by a polygraph they be paid a specific wage. This restric- increased either by 5 percent, by the per- examiner licensed under the State Occu- tion also applies to any entity created by centage increase of the Consumer Price Index pations Code who is a peace officer commis- a city, town, or county. U.S. city average, not seasonally adjusted, or sioned by the department or who has a mini- by a successor index as calculated by the U.S. mum of 2 years of experience conducting Department of Labor or a successor agency preemployment polygraph examinations for Worker privacy. For the purpose of for the 12 months preceding the previous a law enforcement agency. The results shall be constructing an annual survey from the September 1, whichever is smallest. An em- confidential, but the department and polygraph Division of Workforce Information and ployer in the hotel, motel, tourist place, and examiner may disclose the results when there Payment Services, the director of the State restaurant industry shall not employ a service is an admission of criminal conduct. The re- Department of Human Resource Manage- employee or a tipped employee at a basic wage sults of the polygraph examination shall be ment is now required to obtain information less than $3.65 an hour. If the minimum-wage used as a factor in determining the employ- about comparable unusual positions (that rate established by the Federal Government is ability of an applicant. is, positions held by career and noncareer greater than the rate established for the State In accordance with appropriate guidelines, State employees exempt from State pay for any year, the minimum-wage rate for that an employer required to conduct alcohol and plans) requiring recruitment in other States. year shall be the rate established by the Federal drug testing of an employee who holds a com- The information shall include the employer’s Government. mercial driver’s license shall report the fol- name, the number of persons employed, lowing to the State Department of Public employer contact information, job titles, the county code, and the salary if avail- Worker privacy. No employer may require, Safety: (1) a valid positive result on an alcohol as a condition of employment, that (1) an or drug test; (2) a refusal by an employee to able, and such information shall be ac- quired and protected in compliance with employee refrain from disclosing the amount provide a specimen for an alcohol or drug test; of his or her wages or (2) an employee sign a and (3) an adulterated, diluted, or substituted applicable provisions of State law. If a State employee is killed in the line of duty, waiver or other document that purports to specimen provided on an alcohol or drug test. deny the employee the right to disclose the The confidentiality of the records must be insurance coverage for the surviving spouse shall continue until the surviving amount of his or her wages. Further, no em- maintained by the department for those em- ployee shall be discharged, formally disci- ployees holding a commercial driver’s license spouse remarries or becomes eligible for Medicare (whichever comes first). Cover- plined, or otherwise discriminated against for and may be released only to the holder of the disclosing the amount of his or her wages. license, the holder’s current employer, or a age for unmarried children shall continue person acting on behalf of the employer if the up to the age of 26. department receives the holder’s specific Virginia written consent to the release of information. Vermont The confidentiality of addresses, telephone Child labor. Counties, cities, or towns of the numbers, Social Security numbers, and per- Living wage. On or before January 15 of Commonwealth may authorize by ordinance sonal family information has been extended to every year, the State General Assembly any person residing anywhere in the Com- employees of a district attorney, criminal Joint Fiscal Committee shall issue a report monwealth who is 16 years of age or older and district attorney, or county or municipal consisting of a liveable-wage analysis and a who is a member of a volunteer fire company attorney whose jurisdiction includes any basic-needs calculation. The report shall within such county, city, or town, to seek cer- 26 Monthly Labor Review January 2006 tification under National Fire Protection 1 misdemeanor if the value of the wages Washington Association 1001, level 1, firefighter standards withheld is less than $10,000. If the wages as administered by the State Department of earned and not paid are more than $10,000, or Drug and alcohol testing. A motor carrier, Fire Programs. Children 16 years of age or if the conviction is a second or subsequent employer, or consortium that is required to older may participate in all activities of a conviction, the employer is guilty of a Class 6 have a testing program must report a refusal volunteer fire company; however, any such felony. by a commercial motor vehicle driver to take a child shall not enter a burning structure or a A person who knowingly makes, draws, drug or alcohol test to the State Department structure that contains burning materials prior utters, or delivers a bad check on behalf of any of Labor when the medical review officer or to obtaining certification under National Fire business for the purpose of paying wages to the breath alcohol technician has not reported Protection Association 1001, level 1, fire- any employee is guilty of a Class 6 felony if the refusal. A refusal to take a drug or alcohol fighter standards, except where entry into a the check has a represented value of $200 or test that meets the standard for refusal under structure that contains burning materials is more. Federal law is considered equivalent to a report during training necessary to attain certification If an employee who works at any facility of a verified positive drug test or a positive under National Fire Protection Associa- at which the operation of amusement devices alcohol confirmation test, respectively. A tion 1001, level 1, firefighter standards as is authorized fails to designate a financial medical review officer or a breath alcohol administered by the Department of Fire Pro- institution for the electronic automated trans- technician under contract to an employer grams. fer of his or her wages or salary, then the involved in transit operations may report a employer may pay the employee by crediting positive alcohol or drug test for transit drivers Discharge of employees. Employees who a prepaid debit card or card account without to the State Department of Labor only when believe that they have been discharged or the consent of the employee. the positive test is a preemployment screening otherwise discriminated against shall be test. A transit employer may report a positive prohibited from seeking relief under the State Whistleblower. State employees shall not be test to the State Department of Labor only code concerning remedies for discrimination if prohibited or otherwise restricted from their when (1) the driver’s employment has been they fail to file a complaint within 60 days right to express opinions to State or local terminated or the driver has resigned; (2) any after such violation occurs. elected officials on matters of public concern, grievance procedures up to, but not including, nor shall the employees be subject to acts of arbitration have been concluded; and (3) at the retaliation because of the expression of such time of termination or resignation, the driver Off-site work. The State has been required opinions. The “matters of public concern” has not been cleared to return to safety-sensitive by legislation to establish a comprehensive include those of interest to the community as statewide telecommuting and alternative work functions. a whole, whether for social, political, or other schedule policy under which eligible em- reasons, and shall include discussions that ployees of State agencies, as determined by disclose any (1) evidence of corruption, im- Family issues. The State Family Care Law State agencies, may telecommute or par- was amended to allow employees to use sick propriety, or other malfeasance on the part of ticipate in alternative work schedules. The leave or other paid time off, including time government officials; (2) violations of law; or State secretary of administration, while es- (3) incidence of fraud, abuse, or gross mis- allowed under certain long- or short-term tablishing the State’s policy on telecom- disability policies, to care for certain family management. muting and alternative work schedules, now members, including adoptive parents, who requires that those broad categories of po- have certain health conditions. In addition, the Worker privacy. The State’s Employment sitions determined to be ineligible to par- definition of “sick leave or other time off” was Commission is now authorized to provide ticipate in telecommuting be identified and that modified to include a disability policy as secure electronic access to quarterly wage the decision rendering them ineligible be jus- applicable to an employee for illness, vaca- reports submitted by employing units to any tified. tion, or personal holiday. The definition in- consumer reporting agency. The commission will set the terms and conditions, require the cludes any self-administered disability plan, Time off from work. Employees who miss agency to pay all costs associated with estab- unless the employer maintains a separate bona work to serve as election officers cannot be lishing and maintaining the access, and cancel fide paid sick leave policy plan or practice. discharged, required to use sick leave or vaca- any contract with an agency that fails to com- The definition does not include any leave tion time, or have any other adverse personnel ply. The information can include only the benefit granted by a disability policy covered action taken against them, provided that they amount of wages for an individual and the by the Employment Retirement Income give their employer reasonable notice of their employing unit’s name and address. The agen- Security Act of 1974 or by a plan administered absence. If they have served 4 or more hours, cy will require users of the information to by a third party. the employer cannot require them to begin a obtain written consent from the individual work shift after 5:00 P.M. following their whose report they are accessing. The letter of Handicapped workers. State agencies and service or before 3:00 A.M. the next day. Any consent must state the specific purpose for departments are encouraged to purchase prod- employer who violates this act is guilty of a which the release of information is made and ucts and services manufactured or provided Class 3 misdemeanor. that the consent is voluntary. The letter must by those community rehabilitation programs The employee day-of-rest requirements also state that the files may be accessed and of the State Department of Social and Health found in the State Code have been repealed. must give the identity and address of the Services which operate facilities serving Now employers are not required to give parties authorized to access the information. disadvantaged persons and persons with employees 24 consecutive hours off from Finally, a refusal to grant consent cannot be disabilities or, until 2009, by businesses work each calendar week. the basis for a denial of credit, and the agency owned and operated by persons with dis- will require that the information be used only abilities that have achieved or consistently Wages paid. An employer who fails or to verify the accuracy of information previ- make progress towards the goal of enhancing refuses to pay wages is now guilty of a Class ously provided. opportunities for disadvantaged persons or Monthly Labor Review January 2006 27 State Labor Laws, 2005 persons with disabilities. These organizations fully commissioned peace officers or pursuant to the application review. When must offer products and services at the fair reserve officers will be required to take information requests are sent to out-of-State market price, pursuant to State regulations, and and pass a polygraph test or similar employers, an applicant who has signed a once it has been determined that they have assessment procedure as a condition of statement authorizing the State in which the done so, the departments are authorized to employment as a peace officer. The em- applicant was previously employed to release negotiate directly with the appropriate State ploying city, county, or State law enforce- employment-related information shall not be agencies for the procurement of said products ment agency may require that applicants prevented from gaining employment with the and services. taking such testing pay a portion of the current State’s public schools if the laws or testing fee based upon the actual cost of policies of the State in which the applicant Human trafficking. In order to improve the test or $400, whichever is less. The was previously employed prevent documents services to victims of human trafficking, the polygraph examination or similar assess- from being made available to the State school director of the State Department of Commu- ment shall be administered by an ex- district in which the applicant has applied for nity, Trade, and Economic Development is perienced polygrapher who is a graduate of employment or if the out-of-State school required to convene a work group to develop a polygraph school accredited by the district fails or refuses to cooperate with the written protocols for the delivery of services American Polygraph Association. Those request. to such victims and to develop policies for persons whose certification has lapsed interagency coordinated operations. At a because of a break in service in excess of 24 months also are required to take and West Virginia minimum, the protocols must (1) apply to the State Department of Community, Trade, and pass such examination or similar assess- Equal employment opportunity. The Ex- Economic Development, the State Depart- ment, or their recertification shall be de- ecutive Department of the State has been ment of Health, the State Department of nied. requested to establish a coordinated suc- Social and Health Services, the Office of the An employer who discloses information cession-planning process that will include State Attorney General, the State Patrol, the about a former or current employee now components providing opportunities to cor- State Department of Labor and Industries, is immune from civil and criminal liability rect the existing systemwide gender pay and the State Employment Security Depart- if the information relates to the employee’s disparity among State employees. The de- ment; (2) provide polices and procedures ability to perform the job or to the em- partment is to provide reports to the Equal for interagency coordinated operations and ployee’s diligence, skill, or reliability in Pay Commission. for cooperation with government agencies performing the job or if the information and with nongovernmental organizations, relates to any illegal act committed in agencies, and jurisdictions, including law fulfillment of the duties of the job. The Wisconsin enforcement agencies and prosecuting at- employer should retain a written record torneys; (3) include the establishment of a of the identity of the person to which the Minimum wage. By administrative rule, the database that is electronically available to all information is disclosed for a minimum of State’s minimum wage for adults was increased affected agencies and that contains the names, 2 years. The employee or the former em- to $5.70 per hour effective June 1, 2005. addresses, and phone numbers of agencies ployee has a right to inspect any such record upon his or her request. The em- Prevailing wage. On January 1, 2005, the which provide services to the victims of ployer is presumed to be acting in good prevailing-wage threshold amount for coverage trafficking; and (4) specify guidelines for faith, a presumption that can be rebutted under the State prevailing-wage laws for State providing the social service needs, including only by showing clear and convincing and municipal contracts was changed admin- housing, health care, and employment, of evidence that the information was know- istratively from $186,000 to $200,000 for victims of trafficking. ingly false, deliberately misleading, or contracts in which more than one trade is made with reckless disregard for the involved and from $38,000 to $41,000 for Right to work. When an employee in the truth. contracts in which a single trade is involved. broadcasting industry is subject to an em- The names, dates of birth, residential On January 1, 2006, these amounts were ployee noncompetition agreement and is addresses, telephone numbers, personal changed administratively to $209,000 in terminated without just cause or is laid off by wireless telephone numbers, personal which more than one contract is involved and action of the employer, the noncompetition electronic mail addresses, Social Security $43,000 for contracts in which a single trade agreement is void and unenforceable. The numbers, and emergency contact infor- is involved. employer is not restricted from protecting mation of employees or volunteers of a trade secrets or other proprietary information public agency, and emergency contact by lawful means in equity or under applicable Wyoming information of dependents of such em- law. This enacted legislation does not terminate ployees and volunteers, including in- Unfair labor practice. Legislation was or in any way modify any rights or liabilities dependent provider home care workers, are enacted that extended the former deadline of resulting from an employee noncompetition confidential and available only upon 90 days for filing a complaint under the State agreement that was entered into before Decem- following specific guidelines for their re- Fair Employment Practices Act. An em- ber 31, 2005. lease. ployee now has 6 months to provide a writ- An applicant may be employed by a ten complaint after the occurrence of the Worker privacy. Applicants who have been school district on a conditional basis pending alleged discrimination or unfair employment offered conditional offers of employment as the district’s review of information obtained practice. 28 Monthly Labor Review January 2006 Notes 1 All of the State legislatures met in regular information received by November 15, 2005. Internet at the U.S. Department of Labor, session in 2005. Iowa and the Virgin Islands did Employment Standards Administration, Web not enact significant legislation in the fields 2 Several tables displaying State labor law site; visit http://www.dol.gov/esa/programs/ covered in this article. Information about information, including tables on State mini- whd/state/state.htm. Puerto Rico and Guam was not received in time mum-wage rates, State prevailing-wage laws, 3 Alabama, Arizona, Louisiana, Mississippi, to be included in the article, which is based upon and child labor issues, are available on the South Carolina, and Tennessee. Monthly Labor Review January 2006 29