Challenges that keep business people awake at night focus on compliance with ever-changing legal requirements.

These new laws add to the growing list of employee rights and employer obligations over which companies and their executives can be sued.

A failure to comply is a sure recipe for increased exposure to human resources liabilities.

While various state legislatures passed fewer pieces of employment legislation in 2009 and the first half of 2010 than in recent years, a significant number of workplace issues were impacted by legislative enactments.

These new laws cover issues such as the expansion of prohibited bases of discrimination, new employment law procedural requirements, leave of absence entitlements, privacy legislation, prohibitions on smoking in the workplace and new laws creating workers' rights.

PROHIBITED BASES OF DISCRIMINATION

Fifteen states enacted legislation which created or enlarged protected category groups. Seven new laws added protection for discrimination based on sexual orientation or gender identity, while others prohibited discrimination based on credit history, military status, or the status of being a victim of domestic abuse.

The states in which the new protected categories were expanded by legislation include:

Colorado (due to gender identity)
Delaware (due to sexual orientation)
Hawaii (due to credit history)
Illinois (due to the status of obtaining a protective order for domestic abuse)
Indiana (due to the status of providing emergency response services as well as raising the age for protection for age discrimination from 70 years old to 75 years old)
Iowa (on account of sexual orientation and the status of being an emergency response provider)
Maine (on account of sexual orientation)
New York (due to the status of having been a victim of stalking or domestic abuse)
North Dakota (on account of having the status of being an emergency response provider)
Ohio (on account of military status)
Oregon (due to whistleblower status)
Wisconsin (due to membership in the Civil Air Patrol)

NEW PROCEDURAL REQUIREMENTS FOR WORKPLACE LAWS

Several states enacted legislation, or amended existing legislation, which changes or enlarges procedures and substantive rights for litigation of employment discrimination claims.

In Illinois, a new statute of limitations was established for wage discrimination complaints (of one year).
In Iowa, an Equal Pay Act statute was passed.
In Maine, the applicable statute of limitations for employment discrimination was extended to 300 days from 180 days.
In Maryland, a “mini-Ledbetter” Act was passed to establish a new statute of limitations for pay discrimination complaints.
In New Jersey and Oregon, causes of action were established for religious accommodation.
In Vermont, a cause of action was established for retaliation due to attending a town meeting.

REDUCTION-IN-FORCE/”MINI” WARN LEGISLATION

Iowa, New Hampshire and New York enacted laws to regulate notice procedures for mass layoffs and reductions-in-force.

In Mississippi and South Carolina, new causes of action were established for workers laid off on account of being replaced by an unauthorized alien.

WARN is the federal law known as the Worker Adjustment & Retraining Notification Act, which requires 60 days advance notice of plant closing and mass layoffs.

PRIVACY LEGISLATION

Four states enacted laws regarding worker privacy. Connecticut passed a statute regulating electronic monitoring of employees and requiring creation of privacy policies by companies.

A law regulating the use and storage of biometric information such as retina/iris scans, fingerprints, voice prints and scan of face geometry was enacted in Illinois.

Missouri enacted a law prohibiting the placement of microchips on workers.

Legislation regulating the use and storage of documents with Social Security numbers was passed in New York.

Furthermore, laws providing rights to mothers to breastfeed infants in the workplace were enacted in Arkansas, Maine, Massachusetts, North Dakota and Washington.

NEW LEAVE OF ABSENCE ENTITLEMENTS

Legislation to expand leave of absence entitlements was the subject of extensive debate at the state level during 2009 and 2010.

Fifteen states enacted or expanded:

Military leave rights (Florida, Rhode Island and Oregon)
Rights for victims of domestic abuse (Illinois and Washington)
Parental leave rights (Colorado and Nevada)
Forms of paid sick leave and flex leave (the District of Columbia, Maryland and New Jersey)
Bereavement leave for same-sex partners (New York)
Leave for emergency response providers (Indiana, Iowa, North Dakota and Wisconsin).

MISCELLANEOUS EMPLOYMENT & LABOR LEGISLATION

Several states also passed miscellaneous labor/employment laws.

These included wage transparency and wage setting notification laws in Colorado and New York; laws authorizing the carrying of firearms by employees on company property (typically, in parking lots) in Arizona, Florida, Georgia, Indiana, Oklahoma and Utah; laws regulating use of criminal background and credit history information in Illinois, Massachusetts and Oregon; and bans on smoking in the workplace, enacted by Iowa, Kansas, Michigan, North Carolina, Pennsylvania and Wisconsin.

In addition, New York enacted several employment and labor laws granting anti-discrimination protections to domestic workers. This prohibits discrimination and harassment on the grounds of gender, race, religion and national origin. It also establishes criminal and monetary penalties for misclassification of employees as independent contractors on construction projects.

To obtain a copy of the 2010 Fifty State Survey, contact the author at gmaatman@seyfarth.com.

Gerald L. Maatman Jr. is a partner with Seyfarth Shaw LLP in Chicago.

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