Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
As 2012 winds to a close, a look back at legal developments demonstrates that federal and state legislatures were busy all year long. Every year, employers are inundated with new employment laws and regulations that impose new compliance obligations on employers. This year is no exception. This summary provides an overview of new laws – and a chart of laws that become effective in 2013 – and is the result of Littler's 50-state tracking of federal and state employment legislation and regulations. California was by far the busiest state with over 35 new pieces of employment-related legislation and regulations, but nearly every state had something new for employers this year.1
Each year brings different trends in employment-related legislation. Often, after one state passes a law, others quickly follow with similar legislation. For example, in 2011 New Jersey became the first in the nation to ban discrimination based on unemployment status. Numerous states proposed similar legislation in 2012, and both the District of Columbia and Oregon enacted their own unemployment discrimination bills in the spring of 2012.
With a vigorous election season in 2012, ballot initiatives were very popular. Both Colorado and Washington legalized marijuana, leaving employers questioning the effects of such laws on the workplace.2 Massachusetts voters passed a medical marijuana law, while Montana voters revised their existing medical marijuana law. In Connecticut, legislators, not voters, also approved medical marijuana.3 Same-sex marriage, health care reform, and secret union ballots also filled the ballot box this fall in states throughout the nation.
Each year we see a new bill or two that begs the question, is this the latest trend? Rhode Island receives the honor of passing possibly the most unique new employment law. This new state law prohibits employment discrimination against the homeless, creating a "Homeless Bill of Rights," under which individuals have the right not to face discrimination while seeking or maintaining employment because they lack a permanent mailing address, or because their mailing address is a shelter or social service provider. An aggrieved individual can file a civil suit and, if successful, be awarded injunctive and declaratory relief, actual damages, and reasonable attorneys' fees and costs. As a point of interest, a California legislator has already introduced a similar bill in the new legislative session. We will continue to track this topic and keep clients advised of new developments.
Some of the changes are the result of laws that are automatically updated on an annual basis. At least 10 states will raise their minimum wage in 2013, with nine of those increases caused by recurring annual revisions.4 Other regulatory activity is based on ongoing implementation of new laws. For example, California's Division of Labor Standards Enforcement this year continued to modify its interpretation of the California Wage Theft Prevention Act.5 In addition, California approved new regulations effective December 30, 2012 that address pregnancy discrimination.
In light of all of these changes, employers should confirm what new laws have passed in the jurisdictions in which they operate and when the new laws or regulations become effective. Employers then must devise a plan to ensure that they comply with these new requirements.
There is no reason to believe that the federal government and state legislatures and regulators will be less active in 2013, but the focus of their activity will continue to be a moving target. To assist employers in navigating this critical area of compliance, Littler offers to clients Littler GPS – a paid subscription service that tracks legal developments and provides analysis and guidance on new laws and regulations. The Littler GPS online database provides user-friendly functionality, including full-text content search and intuitive navigation, which can easily be focused on the jurisdictions the user selects. Updated weekly, Littler GPS keeps employers informed and up to date by sending email alerts with links to the latest information.
If you have any questions about new federal or state laws, or Littler GPS, please contact your Littler Attorney.
Enacted Legislation & Regulations by 2013 Effective Date
|
Jurisdiction |
Bill Number |
Summary |
Effective Date |
|
AZ |
2013 Minimum Wage Determination |
The minimum wage will increase from $7.65 to $7.80 per hour for non-exempt employees effective January 1, 2013. The minimum wage for tipped employees increases from $4.65 to $4.80 per hour, plus tips. |
1/1/2013 |
|
CA |
2013 Meals & Lodging Cash Values |
For calendar year 2013, the cash value of meals and lodging for tax purposes is as follows: 3 meals per day: $10.90 (breakfast: $2.35; lunch: $3.30; dinner: $5.20—Note that these amounts add up to $10.85, not $10.90); and a meal not identifiable as either breakfast, lunch or dinner: $3.80. |
1/1/2013 |
|
CA |
2013 Minimum Pay Requirements for Exempt Employees |
The DLSE announced a $1.01 increase in the hourly rate for computer professionals, from $38.89 to $39.90 per hour. The monthly rate increases $175.56, from $6,752.19 to $6,927.75 per month. Finally, the annual salary increases $2,106.68, from $81,026.25 to $83,132.93 per year. DLSE announced a $1.84 increase in the hourly rate for licensed physicians and surgeons, from $70.86 to $72.70 per hour. |
1/1/2013 |
|
CA |
AB 1396 |
Existing statutory law requires an employer who has no permanent and fixed place of business in the state and who enters into a contract of employment involving commissions as a method of payment with an employee for services to be rendered within the state to put the contract in writing and to set forth the method by which the commissions are required to be computed and paid. An employer who does not comply with those requirements is liable to the employee in a civil action for triple damages. This bill, by January 1, 2013, makes this contract requirement applicable to all employers entering into a contract of employment involving commissions as a method of payment with an employee for services to be rendered in the state. |
1/1/2013 |
|
CA |
AB 1536 |
Allows motorists to dictate, send or listen to text-based messages while behind the wheel if using voice-activated, hands-free devices. |
1/1/2013 |
|
CA |
AB 1744 |
Existing law requires every employer, semimonthly or at the time of each payment of wages, to furnish each employee with an accurate itemized statement in writing showing specified information. This bill additionally requires that the itemized statement include, if the employer is a temporary services employer, the rate of pay for each assignment and total hours worked for each legal entity, with a specified exception. Existing law requires an employer to provide each employee, at the time of hiring, with a notice that includes specified information, such as the rate of pay and basis thereof (whether hourly, salary, commission, or otherwise), and to notify each employee in writing of any changes to the information set forth in the notice within 7 calendar days of the changes unless such changes are reflected on a timely wage statement or another writing, as specified. This bill additionally requires that, if the employer is a temporary services employer, staffing agency, or professional employer organization, the notice must include the name, the physical address of the main office, the mailing address if different from the physical address of the main office, and the telephone number of the legal entity for whom the employee will perform work, and any other information the Labor Commissioner deems material and necessary. |
1/1/2013 |
|
CA |
AB 18446 |
Prohibits an employer from requiring or requesting an employee or applicant for employment to disclose a user name or password for accessing personal social media, as specified. Also prohibits an employer from discharging, disciplining, threatening to discharge or discipline, or otherwise retaliating against an employee or applicant for not complying with a request or demand by the employer that violates these provisions. |
1/1/2013 |
|
CA |
AB 1964 |
Workplace Religious Freedom Act of 2012. Adds "religious dress practice" and "religious grooming practice" as a belief or observance to existing protections against religious discrimination in the FEHA. The amended Act directs "religious dress practice" to be broadly construed and "to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the observance by an individual of his or her religious creed." The amended Act likewise directs that "religious grooming practice" be broadly construed "to include all forms of head, facial, and body hair that are part of the observance by an individual of his or her religious creed." In addition, an accommodation of an individual's religious dress or grooming practice that would require that person to be segregated from the public or other employees is not a reasonable accommodation. |
1/1/2013 |
|
CA |
AB 2103 |
Provides that payment of a fixed salary to a nonexempt employee shall be deemed to provide compensation only for the employee's regular, non-overtime hours, notwithstanding any private agreement to the contrary. |
1/1/2013 |
|
CA |
AB 2188 |
Adds second and subsequent convictions for texting while driving as a serious traffic violation, which disqualifies a driver from operating a commercial motor vehicle for a specified time period. |
1/1/2013 |
|
CA |
AB 2386 |
In existing fair employment laws, "sex," includes gender, pregnancy, childbirth, and medical conditions related to pregnancy or childbirth. This bill provides that, for purposes of the laws, the term "sex" also includes breastfeeding or medical conditions related to breastfeeding. |
1/1/2013 |
|
CA |
AB 24927 |
Existing law prohibits employers from engaging in certain acts that prevent employees from disclosing information to the government or a law enforcement agency or from acting in furtherance of a false claims action. Existing law requires that a civil action for a false claim be filed within a specified time period. This bill defines the term obligation for purposes of these provisions and expands the definition of a claim. The bill provides specified relief to any employee, contractor, or agent that is, among other things, discharged, demoted, suspended, or in any other manner discriminated against in the terms and conditions of his or her employment because of certain acts done by the employee, contractor, or agent in furtherance of these provisions or to stop one or more violations, as specified. The bill modifies the statute of limitations of certain civil actions, as specified. |
1/1/2013 |
|
CA |
AB 26748 |
Requires an employer to maintain personnel records for a specified period of time and to provide a current or former employee, or his or her representative, an opportunity to inspect and receive a copy of those records within a specified period of time, except during the pendency of a lawsuit filed by the employee or former employer relating to a personnel matter. |
1/1/2013 |
|
CA |
AB 2675 |
Existing law requires that whenever an employer enters into a contract of employment with an employee for services to be rendered within this state and the contemplated method of payment of the employee involves commissions, the contract must be in writing and set forth the method by which the commissions are to be computed and paid. This bill exempts from this requirement temporary, variable incentive payments that increase, but do not decrease, payment under the written contract. |
1/1/2013 |
|
CA |
SB 1140 |
Provides that marriage is a personal relation arising out of a civil, and not religious, contract. |
1/1/2013 |
|
CA |
SB 1177 |
Prohibits, in cases where an employer is convicted of a crime against an employee, a payment to the employee or the employee's dependent that is made by the employer's workers' compensation insurance carrier from being used to offset the restitution owed unless the court finds that the defendant substantially met the obligation to pay premiums for that insurance coverage. |
1/1/2013 |
|
CA |
SB 1186 |
Reduces statutory damages and litigation protections for defendants who correct violations concerning physical access to buildings by disabled persons; prevents stacking of multiple claims to increase statutory damages; bans pre-litigation demands for money; allows either party to request a mandatory evaluation conference conducted by the court within 90 to 120 days of the request. |
1/1/2013 |
|
CA |
SB 1255 |
Provides that an employee is deemed to suffer injury if the employer fails to provide a wage statement or fails to provide a wage statement showing the name of the employee and the last 4 digits of his or her Social Security number or employee identification number. Also provides that an employee is deemed to suffer injury for that penalty if the employer fails to provide accurate and complete information and the employee cannot promptly and easily determine from the wage statement alone the amount and manner in which the employer calculated the gross and net wages paid to the employee during the pay period, the deductions the employer made from the gross wages to determine the net wages paid to the employee during the pay period, and the name and address of the employer or legal entity that secured the services of the employer. |
1/1/2013 |
|
CA |
SB 1574 |
Reforms electronic discovery procedures. |
1/1/2013 |
|
CA |
SB 863 |
Provides for a substantial revision of the workers' compensation laws. Relates to chiropractic doctors, a specified return-to-work program, labor-management agreements, self-insured employers, surgery, re-training and skill enhancement, home health care services, independent medical review, medical provider networks, billing, liens, language interpretation services, and certain reporting requirements. |
1/1/2013 |
|
CO |
2013 Minimum Wage Determination |
Minimum Wage Order Number 29 establishes a new state minimum wage rate of $7.78 per hour and $4.76 per hour for employees who regularly receive tips. |
1/1/2013 |
|
FL |
2013 Minimum Wage Determination |
The Florida minimum wage will to increase by 12 cents to $7.79 per hour. For tipped employees, the minimum wage will increase to $4.77 per hour, in addition to tips. |
1/1/2013 |
|
GA |
HB 1166 |
Provides for individual health insurance coverage to children through child-only health plans. |
1/1/2013 |
|
IL |
HB 37829 |
Provides that it is unlawful for an employer to request a password or other account information in order to access an employee's or prospective employee's social networking website. Permits employers to maintain lawful workplace policies relating to Internet use, social networking site use and electronic mail use. Permits employers to obtain, regarding employees and prospective employees, information in the public domain and information obtained in compliance with this amendatory Act. |
1/1/2013 |
|
IL |
HB 5101 |
Provides that a driver may not use a hand-held mobile telephone or engage in texting while driving a commercial motor vehicle. |
1/1/2013 |
|
IL |
HB 5632 |
Amends the Unemployment Insurance Act. Provides that if benefits are paid after a reversal of a determination in subsequent proceedings, the benefit charges shall be treated as if the decision had not been reversed if the benefits were paid because the employer failed to respond timely or adequately and had established a pattern of that type of failure. Imposes an additional penalty for obtaining benefits by means of a false statement or failure to disclose a material fact. Repeals certain provisions concerning the benefit wage ratio. Also defines employee for purposes of the New Hire Registry. |
1/1/2013 |
|
LA |
Louisiana HB 1196 |
Provides for continuation of coverage for spouses and dependents in the event of death or divorce. Provides for the continuation of group health, dental, and vision plans that are not covered by COBRA continuation provisions. |
1/1/2013 |
|
MD |
Question 6 - HB 438 (SB 241) |
Approves legislation that allows same-sex couples to obtain a civil marriage license. |
1/1/2013 |
|
MA |
Medical Marijuana Initiative (Question 3) |
Allows medical marijuana. |
1/1/2013 |
|
MA |
SB 2400 |
Provides a tax credit of up to $10,000 to |
1/1/2013 |
|
MO |
2013 Minimum Wage Determination |
Minimum wage will be $7.35 per hour, a 10-cent per hour increase. |
1/1/2013 |
|
MT |
2013 Minimum Wage Determination |
Minimum Wage will rise to $7.80 per hour, a 15-cent per hour increase. |
1/1/2013 |
|
MT |
Referendum 122 |
Allows residents to choose their health care insurance plans. |
1/1/2013 |
|
NJ |
2013 Rates for Board and Room, Meals, and Lodging |
The Department of Labor and Workforce Development publishes notice of the rates for board and room, meals, and lodging furnished by employers in addition to, or in lieu of, money wages during calendar year 2013. These amounts are used when the employer does not assign value to such payments for unemployment and temporary disability insurance purposes only. |
1/1/2013 |
|
NM |
Albuquerque Minimum Wage Initiative |
Calls for raising the minimum wage in the city from $7.50 an hour to $8.50 an hour, as well as a cost of living adjustment. |
1/1/2013 |
|
ND |
SB 2170 |
Relating to the imposition of individual income taxes and employer income tax withholding for mobile workforce employees; and relating to the imposition of individual income taxes and employer income tax withholding for mobile workforce employees. |
1/1/2013 |
|
OH |
2013 Minimum Wage Determination |
Minimum increases to $7.85 per hour for non-tipped employees and to $3.93 per hour for tipped employees. |
1/1/2013 |
|
OR |
2013 Minimum Wage Determination |
Minimum wage rate will be $8.95 per hour, a 15-cent per hour increase. |
1/1/2013 |
|
RH |
HB 7396 |
Raises the minimum wage to $7.75 per hour. |
1/1/2013 |
|
RH |
SB 2374 |
Raises the minimum wage to $7.75 per hour, and requires adjustments commencing January 1, 2014. |
1/1/2013 |
|
TX |
Regulation: 28 TAC 110.1, 110.7 |
Relating to various reporting requirements placed upon insurance carriers and employers. The amendments to section 110.1 primarily remove from this rule provisions relating to employer reporting requirements to the Division, specifically provisions relating to an employer's notice to the Division of non-subscriber status and an employer's notice to the Division when it terminates workers' compensation insurance coverage. New section 110.7 delineates specific reporting requirements for a self-insured political subdivision to notify the Division when it elects to provide medical benefits in the manner described by Labor Code section 504.053(b)(2). |
1/1/2013 |
|
TX |
Regulation: 28 TAC 160 |
The Texas Department of Insurance, Division of Workers' Compensation adopts amendments to section 160.2 and 160.3 and new section 160.1 regarding reports of injury and occupational disease by employers. Sections 160.2 and 160.3 are Division rules that implement certain statutory provisions in Labor Code Chapter 411, Subchapter C, specifically Labor Code section 411.032, which requires an employer to file with the Division a report for certain on-the-job injuries and occupational diseases. The Division adopts these amendments and new section to update and clarify the language and requirements associated with these reporting requirements placed upon employers. |
1/1/2013 |
|
US |
FTC: Updated FCRA Notices10 |
New FCRA notices reflect modest changes to the mandatory agency-drafted FCRA summary of rights form. The FCRA Summary of Rights form must be included: (1) as an enclosure with the first of the two "adverse action" notices – the "pre-adverse action" notice; and (2) with the disclosures for "investigative consumer reports" (i.e., consumer reports based on personal interviews conducted by a consumer reporting agency, such as in-depth reference checks). |
1/1/2013 |
|
US |
IRS: 2013 Mileage Rates |
Rate will be raised to 56.5 cents per business mile driven, one cent higher than the 2012 rate. The rate for medical or moving expenses will also be raised one cent to 24 cents per mile. |
1/1/2013 |
|
US |
IRS: Limitations on Retirement Accounts11 |
The contribution limits for IRAs and 401(k) plans will be increasing from $5,000 per IRA and $17,000 per 401(k) by $500 each. |
1/1/2013 |
|
VT |
2013 Minimum Wage Determination |
Minimum wage will be increased to $8.60 per hour from $8.46 per hour. The basic wage rate for "service and tipped" employees will increase to $4.17 per hour from $4.10 per hour. |
1/1/2013 |
|
WA |
2013 Minimum Wage Determination |
Minimum wage will increase 15 cents to $9.19 per hour. |
1/1/2013 |
| US | DOL: Final Rule on Nondisplacement of Qualified Workers Under Service Contracts12 | Requires that any federal service contracts covered by the Service Contract Act above the simplified acquisition threshold (currently $150,000) and solicitations for such contracts include a clause requiring contractors and their subcontractors to offer existing employees the right of first refusal to take positions for which they are qualified under the new contract. The right of first refusal clause does not apply to managerial or supervisory employees. Contractors found in violation of Executive Order 13495 and its implementing regulations could be barred from future federal contracts for up to 3 years. | 1/18/2013 |
|
PA |
HB 1548 |
The new Child Labor Act requires a 30-minute rest period for minors who work more than 5 continuous hours and revises work hour restrictions; adopts by reference federal standards for occupations deemed hazardous to minors (with additional state requirements added); provides new notice requirements for employers hiring minors; and consolidates work permits by establishing one basic work permit as opposed to the three different types under current law. |
1/22/2013 |
|
MA |
HB 430413 |
Establishes requirements for providing information to temporary workers. |
1/31/2013 |
|
US |
DOL: Final Rule re H-2B Program |
Delays the effective date of the Wage Methodology for the Temporary Non-agricultural Employment H-2B Program (the Wage Rule) to March 27, 2013 from October 1, 2012. The Wage Rule revised the methodology by which DOL calculates the prevailing wages to be paid to H-2B workers and U.S. workers recruited in connection with a temporary labor certification for use in petitioning the Department of Homeland Security to employ a nonimmigrant worker in H-2B status. |
3/27/2013 |
|
IL |
SB 2847 |
Amends the Equal Pay Act of 2003. Provides that in addition to an individual who is deemed to be an employer, any officers of a corporation or agents of an employer who knowingly permit such employer to violate the provisions of the Act shall be deemed to be the employers of the employees. |
6/1/2013 |
|
CA |
AB 1775 |
Defines "disposable earnings" as the portion of an individual's earnings that remains after deducting all amounts required to be withheld by law. Prohibits the amount of an individual judgment debtor's weekly disposable earnings subject to levy under an earnings withholding order from exceeding the lesser of 25% of the individual's weekly disposable earnings or the amount by which the individual's disposable earnings for the week exceed 40 times the state minimum hourly wage in effect at the time the earnings are payable, unless an exception applies. For any pay period other than weekly, the bill also requires the use of certain multipliers to determine a maximum amount subject to levy under an earnings withholding order that is proportional in effect to a calculation based on the amount by which the individual's earnings for a workweek exceed 40 times the state minimum wage, except as specified. |
7/1/2013 |
|
VA |
SB 1049 |
Provides that any employer with more than an average of 50 employees for the previous 12 months entering into a contract in excess of $50,000 with any agency of the Commonwealth to perform work or provide services pursuant to such contract shall register and participate in the federal E-Verify program to verify information and work authorization of its newly hired employees performing work pursuant to such public contract. Any such employer who fails to comply shall be debarred from contracting with any agency of the Commonwealth for a period up to one year. Such debarment shall cease upon the employer's registration and participation in the E-Verify program. |
12/1/2013 |
|
MI |
SB 116 |
Permits employees to engage in, or refrain from, collective bargaining activities; prohibits an individual from being required to engage in or refrain from certain activities (such as joining or paying dues to a labor organization) as a condition of employment; and prohibits a person from forcing or attempting to force anyone to engage in or refrain from certain activities (such as joining or supporting a labor organization). |
Effective 91st day after adjournment – estimated effective date 3/28/13 |
1 See Christopher Cobery and Tomomi Glover, What's New? California's Major 2012 Employment Laws Affecting Private Sector Employers, Littler ASAP (Oct. 2, 2012).
2 See Nancy Delogu and Chris Leh, Marijuana Laws Liberalized in Colorado, Washington – But Effect on Workplace Policies Likely Small, Littler ASAP (Nov. 8, 2012).
3 See Katherin Hoetzl, Connecticut Legalizes Medical Marijuana Use, Places Limits on Employers, Littler ASAP (June 11, 2012).
4 See Littler's Wage & Hour Counsel Blog, State Minimum Wages in 2013 (Oct. 23, 2012), Vermont Announces 2013 Minimum Wage Rate (Nov. 9, 2012), Show-Me State Employers Are Shown Increased 2013 Minimum Wage (Nov. 13, 2012), and Colorado Approves Increased Minimum Wage for 2013 (Dec. 6, 2012).
5 See Brian Dixon, Constance Norton, Christopher Cobey, and Liliya Stanik, Out of the Darkness, into the Shadows: The DLSE Further Modifies Its Interpretation of the California Wage Theft Prevention Act, Littler ASAP (Apr. 18, 2012).
6 See Philip Gordon and Lauren Woon, California's Social Media "Password Protection" Law Takes a More Balanced Approach by Accounting for Employers' Legitimate Business Interests, Littler ASAP (Oct. 10, 2012).
7 See Ken O’Brien, New Provisions of California's False Claims Act, Littler ASAP (Oct. 8, 2012).
8 See Christopher Cobey and Tomomi Glover, What’s In YOUR Personnel File? California Greatly Expands Employee Access and Creates Employer Penalties, Littler ASAP (Oct. 4, 2012).
9 See Philip Gordon and Kathryn Siegel, Illinois' New Social Media Password Protection Law Handicaps Employers' Legitimate Business Activities, Littler ASAP (Aug. 7, 2012).
10 See Rod Fliegel and Jennifer Mora, Employers Must Update FCRA Notices for Their Background Check Programs Before January 1, 2013, Littler ASAP (Sept. 4, 2012).
11 See Employee Benefits Practice Group, IRS Announces Pension Plan Limitations for Tax Year 2013, Littler ASAP (Nov. 6, 2012).
12 See Ilyse Schuman, DOL Announces Effective Date of Rule Governing Nondisplacement of Service Contract Employees, Washington D.C. Employment Law Update (Dec. 21, 2012). See also Gavin Appleby and C. Scott Williams, President Obama Issues Three Executive Orders That Dramatically Affect Labor Relations for Federal Contractors, Littler ASAP (Feb. 2, 2009).
13 See Christopher Kaczmarek and Joseph Lazazzero, Massachusetts Enacts Burdensome New Standards for Staffing Companies, Littler ASAP (Aug. 13, 2012).
Christopher Cobey is Special Counsel in Littler Mendelson's San Jose office, and Cynthia Brown is Senior Manager of Littler's Research Services. If you would like further information, please contact your Littler attorney at 1.888.Littler or info@littler.com, Mr. Cobey at ccobey@littler.com, or Ms. Brown at cbrown@littler.com.