As if risk managers and employers didn't have enough to keep them awake at night, compliance and a parade of ever-changing legal requirements are the stuff nightmares are made of.
While various state legislatures may have passed fewer pieces of employment legislation in 2006 and during the first half of 2007 than in recent years, a significant number of workplace issues were impacted by legislative enactments.
These new laws impact issues such as the expansion of prohibited bases of discrimination, new employment law procedural requirements, leave of absence entitlements, privacy legislation and prohibitions on smoking in the workplace.
They also deal with miscellaneous laws involving immigration and bans on employer interference with workers' rights.
o Prohibited Bases of Discrimination:
Eight states enacted legislation this past year that created or enlarged protected-category groups. Six new laws add protection for discrimination based on sexual orientation or gender identity, while one law prohibits discrimination based on genetic characteristics and another due to pregnancy.
The states that expanded the new protected categories by legislation include Colorado (sexual orientation, gender identity, or religion), Idaho (genetic traits), Iowa (sexual orientation), New Jersey (transgendered status or sexual orientation), Oregon (sexual orientation and gender identity), Vermont (gender identity or orientation), Washington (gender identity), and Wyoming (pregnancy).
o New Procedural Requirements For Workplace Laws:
Last year, five states enacted legislation or amended existing legislation that changes or enlarges procedures and substantive rights for litigation of employment discrimination claims.
o In Alaska, the Human Rights Law was amended to allow the State Commissioner for Human Rights to order expansive relief to remedy employment discrimination. This includes payment of attorneys' fees, training of employees, hiring or reinstatement of a job bias victim, and awards of back pay.
o Maine's Human Rights Act was amended to expand available damages for workplace discrimination up to $500,000, and provide for a new, expansive definition of a disability. This overturned an April 2006 ruling of the Maine Supreme Court, which held that workers had to show that their disability presented a substantial limitation on a major life activity.
o In Maryland, the Fair Employment Practices Act was amended to allow employees a cause of action to pursue discrimination claims in state court after exhausting administrative remedies.
o In New Hampshire, prohibitions against an employer discriminating on the basis of a disability were expanded so that employers may not refuse to make a reasonable accommodation for the known physical and mental disabilities of a qualified individual who is an applicant or employee.
o In Washington, the state legislature amended the prohibition against disability discrimination to make it broader than protections under federal law.
o New Leave-Of-Absence Entitlements:
Legislation to expand leave-of-absence entitlements was the subject of extensive debate at the state level during 2006 and the first half of 2007.
Eight states enacted or expanded military leave rights, including California, Connecticut, Idaho, Indiana, Kentucky, Maine, New York, and Oklahoma.
Family-leave legislation was enacted and/or expanded in Delaware, Oregon, Rhode Island, and Washington.
Leave-of-absence rights also were expanded or adopted for victims of crime or domestic violence in Florida, Kansas, Oregon, and Virginia, and for organ donors in Minnesota.
o Privacy Legislation:
Laws regarding worker privacy were enacted in 11 states during the past 18 months. Primarily, these laws pertain to the rights of mothers to breastfeed in the workplace, including enactments in Alabama, Arizona, Kansas, Kentucky, Mississippi, Oklahoma, Oregon, South Carolina, and Tennessee.
In addition, Nebraska passed new legislation to impose restrictions on employer use of their employees' Social Security numbers, and Washington enacted a law to limit how employers use background checks on applicants and employees.
o Miscellaneous Employment/Labor Legislation:
Several states also passed miscellaneous labor/employment laws in 2006 and the first half of 2007.
Immigration–in light of the lack of all encompassing federal legislation being passed by the U.S. Congress in 2007–was the subject of various state enactments, including laws in Arizona, Colorado, Florida, Georgia, Idaho, Louisiana, and Oklahoma.
Bans on smoking in the workplace were enacted in 15 states. These include Arizona, Arkansas, Colorado, the District of Columbia, Hawaii, Illinois, Louisiana, Mississippi, Nevada, New Jersey, New Mexico, Ohio, Oregon, Puerto Rico, and West Virginia.
Laws also were enacted that forbid retaliation against employees assigned to jury duty (in Indiana), and prohibit intimidation or interference with employee rights (in Mississippi and New Jersey).
Gerald Maatman is a partner with Seyfarth Shaw LLP in Chicago, Ill. Readers who wish to obtain a copy of his 50-State Survey on Employment Laws for 2006/2007 may request a copy by emailing him at gmaatman@seyfarth.com.
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