Summer State/Local Law Round-Up, Part 2 of 2: Ohio through West Virginia (US)
In our post earlier this week, we covered recent developments in state and local labor and employment laws in the states at the beginning at the alphabet. We now turn our attention to developments in the remaining states.
Changes to Ohio’s overtime law take effect July 6, 2022, harmonizing Ohio’s law with the federal Fair Labor Standards Act. In a welcome change for employers, SB 47 adopts the FLSA’s “opt-in” requirement for individuals seeking to join a wage and hour lawsuit, thus eliminating the hybrid collective/class wage and hour suits that combined “opt-in” classes for federal law claims and “out-out” plaintiffs for Ohio state claims. SB 47 also amends the Ohio Minimum Wage Law, effectively incorporating language from the federal Portal-to-Portal Act exempting certain activities from the definition of hours worked; specifically, the following activities are no longer considered hours worked under Ohio law: (a) time spent traveling to and from work, (b) preliminary or postliminary activities; and (c) activities requiring insubstantial or insignificant periods of time beyond the employee’s scheduled working hours.
Effective May 20, 2022, Oklahoma employers are prohibited from discriminating against employees or applicants based on their status as a medical marijuana patient licensee unless the employer would lose a monetary or licensing-related benefit under federal law or regulations. Employers can still prohibit the use or possession, or being under the influence, of marijuana at work or during working hours.
Pay Equity Amendments Extended: With certain limited exceptions, Oregon’s Equal Pay Act (EPA) requires equal compensation for equal work regardless of race, gender, age, or any other protected characteristics. In 2021, Oregon amended the EPA to temporarily exclude hiring and retention bonuses, as well as vaccine incentives, from the statutory definition of “compensation.” The exclusions were slated to expire on March 1, 2022, but were extended by SB 1514 until 180 days following the termination of Oregon’s COVID-19 state of emergency declaration. The emergency declaration was lifted on April 1, 2022, meaning vaccine incentives and hiring and retention bonuses will no longer be excluded from the EPA’s definition of compensation as of September 28, 2022.
Whistleblowing Process Amended: Last summer, Oregon amended its Safe Employment Act (OSEA), creating a rebuttable presumption of unlawful discrimination if an employer takes an adverse employment action against an employee or prospective employee within 60 days of the employee engaging in certain statutorily defined protected activities. Protected activities include: (1) opposing any practice forbidden by OSEA; (2) making a complaint, instituting any proceeding, or testifying in a proceeding under or related to OSEA; (3) exercising rights afforded by OSEA; and (4) making a good faith report of an assault that occurred on the premises of a healthcare employer or in the home of a patient receiving home healthcare services. Effective April 1, 2022, the Oregon Bureau of Labor and Industries (BOLI) regulations implement this change, extending the amount of time an aggrieved employee has to contact the BOLI Civil Rights Division in the event of a violation from 90 days to one year.
Workplace Fairness Act Amendment: Under the Oregon Workplace Fairness Act (WFA), unless requested by an employee, Oregon employers may not enter into an agreement with an employee that contains a no-rehire provision, or a non-disclosure or non-disparagement provision that prevents disclosure or discussion of discrimination, harassment, or sexual assault in the workplace. Recent legislation, effective January 1, 2023, amends the WFA by further prohibiting employers from: (a) including a provision preventing disclosure of the amount or fact of any settlement (unless requested by the employee); (b) conditioning settlement offers on an employee’s request that an otherwise prohibited term be included; and (c) failing to provide employees with whom an agreement is entered into with a copy of the employer’s anti-harassment policy in the language the employer typically uses to communicate with the employee. The amendments also (1) clarify the WFA’s applicability to former employees, as well as current employees and applicants; (2) state that contract terms in violation of the WFA are void and unenforceable; and (3) provides for a civil penalty of up to $5,000 for violations of the WFA.
Rhode Island officially legalized adult recreational marijuana use, effective May 25, 2022. Employers may not discipline employees solely based on their private, off-duty use, unless (1) such use is prohibited by a collective bargaining agreement, or (2) the employer is a federal contractor and is required by the terms of an applicable federal contract or regulation to prohibit the use of marijuana by employees. Additionally, for employees in positions that are “hazardous, dangerous or essential to public welfare and safety,” the employer can prohibit use or consumption of marijuana by employees for twenty-four hours prior to their shift. However, employers can prohibit possession or use or being under the influence of marijuana during work by any employees – even if the work is remote.
Under South Dakota’s medical marijuana law, employers can refuse to allow the “ingestion of cannabis in any workplace.” SB 5 amends the law by adding “possession, transfer, display, or transportation” to the list of cannabis-related workplace use that employers are not required to accommodate. The amendment, which goes into effect July 1, 2022, also clarifies that employers are free to develop and enforce drug-free workplace policies for employees and applicants.
Under H.B. 2733, Tennessee employers must allow their veteran employees to take Veterans’ Day as an unpaid holiday if the employee provides (1) proof of their veteran status, and (2) written notice of intent to take the day off at least one month in advance. Employers may deny leave if the employee’s absence impacts public health or safety or causes the employer significant economic or operational disruption. Employers may also offer Veterans’ Day as a paid holiday if they elect to do so.
As we previously reported, the Virginia Overtime Wage Act (VOWA) – which took effect on July 1, 2021 – significantly deviated from the FLSA’s method of calculating overtime. The original VOWA calculated a salaried, non-exempt employee’s “regular rate of pay” by dividing total compensation (less statutory exclusions) by 40 hours (whereas the FLSA divides by actual hours worked). The VOWA also imposed enhanced penalties on employers, including liquidated (double) damages plus pre-judgment interest at 8% per year for violations as well as treble damages for “knowing” violations. With the passage of HB 117, Virginia will return to the traditional FLSA method for calculating overtime, abandoning the VOWA method, effective July 1, 2022. And, although liquidated damages may still be imposed, employers may defend against a liquidated damages claim with proof that it acted in good faith.
Equal Pay Act Amendment: Washington’s Equal Pay and Opportunity Act was recently amended to include more expansive pay transparency requirements for Washington employers. Previously, the law required Washington employers with 15 or more employees to disclose the minimum wage and salary of an applicant’s position, but only upon request and after the applicant had already received a job offer. Effective January 1, 2023, Washington employers will have to disclose the salary range and a general description of benefits in any external job posting, regardless of whether this information is requested or whether an offer has been made. However, employers still need only provide the wage scale or salary range for internal postings upon request.
PFML Amendment: Washington’s paid family and medical leave law was recently amended. Effective June 9, 2022, the law, as amended, will allow employees to take PFML for bereavement purposes, require the posting to a state website of a list of all employers running their own approved voluntary plans as an alternative to participating in the PFML fund, and will presumptively classify the first six weeks of postnatal leave as paid medical leave, unless the employee elects to use paid family leave. Additionally, the collective bargaining agreement (CBA) exception, which exempted employees covered by a CBA entered into prior to October 2017 from PFML requirements, will end effective December 31, 2023.
In Hassler v. Circle C. Res., the Wyoming Supreme Court held that public policy and black letter contract law prohibits Wyoming courts from revising otherwise unenforceable non-compete agreements. The Court explained that a non-compete is enforceable only if it is: “(1) in writing; (2) part of a contract of employment; (3) based on reasonable consideration; (4) reasonable in duration and geographical limitations; and (5) not against public policy.” Prior to Hassler, Wyoming took the “liberal blue pencil” approach to non-competes, allowing Wyoming courts to reform and enforce the non-compete to the extent it is reasonable – even if it contained unreasonable terms – unless circumstances indicated bad faith or deliberate employer overreach. Following Hassler, Wyoming employers can no longer count on courts to reform and enforce a non-compete agreement if even one aspect of it is unreasonable; thus, employers should evaluate whether their existing non-competes would pass legal muster under the Hassler standard.
Under the West Virginia Wage Payment and Collection Act, West Virginia employers could only pay employee wages using the payroll card method if both the employer and the employee agreed in writing. With the passage of SB 245, as of June 9, 2022, employers can unilaterally decide to use the payroll card method, so long as they provide written disclosure of any applicable fees associated with the payroll card, ensure that the employee has the ability to make at least one withdrawal or transfer from the payroll card per pay period for any amount without paying costs or fees, and ensure that the employee can make in-network withdrawals or transfers from the payroll card without paying costs or fees.
As you can see, it’s been a busy year thus far in the states and localities as it relates to labor and employment laws.
Scott Held also contributed to this article.