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Ready or Not, Here It Comes! 2018 Brings New Labor & Employment Laws, Primarily at the State Level

By Ilyse Schuman, Michael J. Lotito, and Betsy Cammarata

November 13, 2017
14 minute read

As we prepare to turn the calendar to 2018, employers look ahead to the next wave of labor and employment regulations. On January 1, 2018, and throughout the coming year, employers across the nation will confront a host of new or amended federal, state, and/or local laws. This article summarizes impending obligations that may flow from these law changes in the chart below and also highlights some anticipated activity.

Ongoing Federal Activity

At this time last year, employers faced uncertainty about how the Trump administration and Congress might alter federal labor, employment and benefits obligations. Although change to federal workplace policy has not come as quickly as many expected, the pace of change is likely to accelerate as nominations and appointments to critical positions are filled. Indeed, action on the nominations to the National Labor Relations Board (NLRB), Equal Employment Opportunity Commission (EEOC), and Department of Labor (DOL) signals that expected changes in workplace policy will be forthcoming in the year ahead.¹

With that in mind, employers should pay particular attention in 2018 to several potential developments at the federal level, including possible additional changes in immigration law and enforcement.² Health care policy, including the viability of the Affordable Care Act (ACA), also remains in flux. After Republicans failed to “repeal and replace” the ACA through the legislative process, the White House issued an executive order to try to reform the nation’s healthcare system through regulatory channels.³ Meanwhile, efforts to revamp the tax code are well underway in Congress, some aspects of which would have a significant impact on benefits and executive compensation, but are far from settled.

Employers saw some changes in 2017 on several key labor and employment issues, and 2018 is likely to bring further federal legislative and/or administrative developments in these areas. For example, in 2018 the DOL is expected to revisit the now-scuttled update to FLSA overtime regulations. The agency's Wage and Hour Division will likely engage in further rulemaking to decide what the new salary level should be for overtime purposes. In June, Labor Secretary Alexander Acosta announced the withdrawal of two controversial Wage and Hour Administrator's Interpretations on independent contractors and joint employment.

Relatedly, in Congress, House Republicans passed a bill in 2017, entitled the Save Local Business Act (H.R. 3441), that would amend two labor and employment statutes to clarify when an entity can be deemed a “joint employer.”⁴ The bill moves now to the Senate, where its fate is less certain. In the face of an increasingly complex maze of state and local paid leave laws, lawmakers in Congress are proposing a novel approach to paid leave and workplace flexibility. In an effort to promote workplace flexibility and streamline employer paid leave obligations nationwide, Representative Mimi Walters (R-CA) House introduced the Workflex in the 21st Century Act (HR 4219). This bill would create a voluntary program whereby employers that choose to offer their employees a minimum number of compensable leave days per year and institute a flexible work arrangement would be exempt from the current patchwork of local and state paid leave laws.⁵ This legislation could clarify and simplify compliance burdens on employers across the nation.

Ongoing State and Local Activity

Of course, they say that “all politics is local,” and 2017 did not disprove that theory. Given the lingering gridlock in Congress, the most significant labor and employment developments taking effect in 2018 arose at the state and municipal levels. As the chart below demonstrates, municipalities have paved the way for new regulation on a variety of topics, including protected or paid time off, pregnancy accommodations, background checks, and equal pay.

Many new state and local laws enacted in 2017 have already taken effect. The chart below focuses only on those laws that are set to take effect in the new year and beyond. Readers interested in keeping abreast of legislative activity at the state and local levels should follow State of the States, our monthly report featuring notable bills and trends percolating in the statehouses and city halls nationwide.⁶

Laws Taking Effect in 2018

As the year winds down, employers should prepare for changes scheduled to take effect in 2018. The chart below briefly recaps laws and regulations that will become operative sometime in 2018. (We’ve included a few late bloomers from 2017 as well, and a sneak peek at 2019.) Although local and industry-specific laws may be listed, these samples are included primarily to highlight compliance challenges employers face. In addition, not all state and local minimum wage laws are included in this article. A complete discussion of minimum wage rate changes for 2018 can be found in a separate Littler Insight, The Minimum Wage in 2018: A Rates-Only Update. Because the below list does not cover every possibly applicable federal, state, and local law, employers may find it helpful to discuss with knowledgeable counsel which local, state, and/or federal laws will apply in 2018.

Federal
Rule/E.O.	Main Topic	Summary	Effective Date
S.E.C Pay Ratio Guidance	Executive Compensation	Provides interpretive guidance from the Securities and Exchange Commission concerning the pay ratio disclosure requirement under Dodd-Frank and associated regulations.	Disclosures becoming due in 2018
DOL Proposed Delay of Rules for Plans with Disability Benefits	Disability Benefits Claims Procedure	Proposed 90-day implementation delay of final rules governing claims regulations for ERISA-covered disability benefit plans. If the delay is adopted, the final rules would apply to disability claims filed on or after 4/1/2018. DOL may also rescind or modify the rules during this review period.	4/1/2018

California⁷
Law	Main Topic	Summary	Effective Date
AB 46	Equal Pay	Amends the definition of “employer” under the equal pay law to include public and private employers.	1/1/2018
AB 168⁸	Salary History	Applies to all employers and prohibits inquiries into, and reliance on, an applicant’s salary history.	1/1/2018
AB 260 & SB 225	Human Trafficking	AB 260 requires additional businesses to post notice concerning human trafficking and available hotlines, including hotels, motels, and bed and breakfast inns. SB 225 requires notice to include a text number to access support and services.	1/1/2018
AB 450⁹	Immigration	Unless otherwise required by federal law, prohibits employers from consenting to ICE access to worksite and records.	1/1/2018
AB 1008¹⁰	Criminal Background Checks	Extends statewide ban-the-box law to employers with 5+ employees. Permits criminal history inquiry only after conditional offer of employment. Requires individualized assessment and written notice if applicant is disqualified.	1/1/2018
AB 1222	Cellphones & Driving	Removes a specialized mobile radio and two-way messaging device from prohibition.	1/1/2018
AB 1701	Construction Contractors	Certain contractors must assume and are liable for unpaid wages, benefits, or contributions owed by subcontractors.	1/1/2018
AB 1710	Antidiscrimination: Military Personnel	Prohibits discrimination against service members in any terms, conditions, or privileges of employment.	1/1/2018
SB 63¹¹	Parental Leave	Expands parental leave law, such that employers with 20+ employees must grant employees with 12 weeks of unpaid, job-protected parental bonding leave.	1/1/2018
SB 258	Workplace Safety: Cleaning Product Data	Provides that employers required to maintain safety data sheets must also make information available about certain consumer cleaning products.	1/1/2018
SB 306	DLSE Enforcement Actions	Authorizes DLSE to initiate additional investigations of employers suspected of discrimination or retaliation, even without an employee complaint.	1/1/2018
SB 396	Antidiscrimination: Gender Identity, Gender Expression, Sexual Orientation	Requires employers with 5+ employees to post notice regarding transgender rights. Also requires employers with 50+ employees to provide training addressing harassment based on gender identity, gender expression, and sexual orientation.	1/1/2018
Emeryville: No. 17-013	Predictive Scheduling	Amends the Fair Workweek ordinance to clarify certain exceptions.	11/16/2017 ("hard" enforcement begins 1/1/2018)
Emeryville: Resolution No. 17-160	Predictive Scheduling	Adopts regulations implementing and enforcing the Fair Workweek ordinance.	11/16/2017
San Francisco: No. 170350¹²	Salary History	Prohibits prospective employers from asking about an applicant’s pay history. Makes it illegal for employers to disclose that information about a current or former employee, without written permission.	7/1/2018

Colorado
Law	Main Topic	Summary	Effective Date
HB 1186	Benefits: Contraceptive Coverage	Beginning in 2019, requires health benefit plans to cover a multi-month supply of prescription contraceptives.	1/1/2019

Connecticut
Law	Main Topic	Summary	Effective Date
HB 7037	Workers’ Compensation: Child Support Withholding	Requires employers to transmit a copy of any withholding order to its workers’ compensation benefits carrier when first reporting employee claim.	1/1/2018

Delaware
Law	Main Topic	Summary	Effective Date
HS 1¹³	Salary History	Prohibits employers from screening applicants based on pay history and from seeking an applicant’s compensation history from current or former employers.	12/14/2017
HB 180	Security Breach Notification	Amends existing notification law to expand the definition of protected personal information and adds duties, including offering identity theft protection.	4/4/2018

Hawaii
Law	Main Topic	Summary	Effective Date
SB 1007	Tax Withholding	Changes when and how often employers must remit tax withholdings.	1/1/2018

Illinois
Law	Main Topic	Summary	Effective Date
SB 318	Antidiscrimination: Genetic Information	Prohibits employers from penalizing employees who refuse to disclose genetic information.	1/1/2018
SB 1895	Protected Time Off: Volunteer Emergency Responders	Prohibits employers from disciplining an employee who responds to an emergency call or text during work hours when his or her volunteer emergency services are needed.	1/1/2018

Maine
Law	Main Topic	Summary	Effective Date
LD 88	Marijuana Legalization	Delays implementation of the Marijuana Legalization Act until 2/1/2018.	2/1/2018
LD 1477	Antiharassment Training	Mandates that employers use a compliance checklist from the state agency to develop a sexual harassment training program.	11/1/2017

Maryland
Law	Main Topic	Summary	Effective Date
HB 974	Security Breach Notification	Amends existing notification law to expand the definition of protected personal information and adds notice duties, including where email access is disclosed.	1/1/2018

Massachusetts
Law	Main Topic	Summary	Effective Date
SB 2119¹⁴	Equal Pay	Prohibits employers from paying a lower rate than paid to employees of a different gender for comparable work. Bans salary history inquiries and prohibits employers from restricting employees from sharing wage information.	7/1/2018
SB 3680¹⁵	Pregnancy Accommodations	Obligates employers to reasonably accommodate all pregnant women and employees who need to express breast milk.	4/1/2018

Minnesota
Law	Main Topic	Summary	Effective Date
St. Paul: Final Rule on Sick Time¹⁶	Protected Time Off: Earned Sick & Safe Time	Adopts final rules implementing and enforcing the Earned Sick and Safe Time Ordinance (No. 233).	11/30/2017

Nevada
Law	Main Topic	Summary	Effective Date
AB 76	Criminal Background Checks	Removes the duty of the state central repository of criminal records to provide certain information to employers and repeals immunity previously afforded employers under specific circumstances.	1/1/2018
SB 361¹⁷	Protected Time Off: Domestic Violence	Requires employers to grant leave (up to 160 hours per year) to employees who are victims of domestic violence, or whose family or household members are victims. Obligates employers also to reasonably accommodate employees, including modified schedules or new work numbers.	1/1/2018

New York
Law	Main Topic	Summary	Effective Date
SB 6406, AB A9006C¹⁸	Protected Time Off: Family Leave	Entitles an eligible employee to up to 12 weeks of paid family leave annually; program phases in on 1/1/2018 with up to 8 weeks of leave with pay set at 50% of the employee’s average weekly wage.	1/1/2018
SB 2543	Workplace Safety: Electronic Smoking Devices	Amends prohibition against smoking in public areas (including workplaces) to include electronic devices (i.e., vaping).	11/22/2017
New York City: No. 1253¹⁹	Salary History	Prohibits employers from inquiring about an applicant’s salary history and from relying on that history, unless it is offered voluntarily.	10/31/2017
New York City: No. 1313-A²⁰	Protected Time Off: Paid Safe Time	Expands the City’s paid sick leave requirements to cover “safe time,” including if an employee or family member is a victim of a family or sexual offense, or stalking.	5/5/2018
New York City: No. 1384²¹	Fast Food Employees: Charitable Deductions	Requires fast food employers, upon request, to arrange payroll deductions for employees to make voluntary contributions to authorized nonprofits.	11/26/2017
New York City: No. 1388	Fast Food Employees: Shift Limitations	Prohibits employers from requiring fast food employees to work two shifts with fewer than 11 hours rest between them, without written employee consent. Imposes $100 premium to employee if so scheduled.	11/26/2017
New York City: No. 1395	Fast Food Employees: Opportunity to Work	Requires fast food employers to offer available regular or on-call shifts to currently employed workers. Prohibits employers from hiring new employees to fill these shifts before offering shifts.	11/26/2017
New York City: No. 1396	Fast Food Employees: Predictive Scheduling	Requires fast food employers to provide new hires with good-faith estimate of weekly hours. All work schedules must be posted at least 14 days’ in advance. Premium payments apply for changes to the posted schedule.	11/26/2017
New York City: No. 1387	Retail Employees: Scheduling Limitations	Prohibits retail employers from: (1) scheduling employees on call; (2) cancelling a shift within 72 hours; (3) requiring an employee to work with less than 72 hours’ notice, except with written consent; and (4) requiring an employee to “call in” to confirm a shift less than 72 hours before it begins.	11/26/2017

North Carolina
Law	Main Topic	Summary	Effective Date
SB 407	Worker Classification	Creates an Employee Classification Section within the North Carolina Industrial Commission, to investigate reports of misclassification and to coordinate state agencies in recouping taxes, wages, etc. Also requires workplace posting.	12/31/2017

Ohio
Law	Main Topic	Summary	Effective Date
Admin. Code 4141-11-01	Unemployment Insurance	Requires employers to submit quarterly contribution, payroll, and/or wage reports electronically.	1/1/2018

Oregon
Law	Main Topic	Summary	Effective Date
HB 3008	Wage & Hour Records	Prohibits employers from compelling employees to falsify documents related to hours worked or compensation received. Authorizes private actions and recovery of actual damages, penalties, fees, and costs.	1/1/2018
SB 299²²	Protected Time Off: Paid Sick Leave	Amends the Oregon paid sick leave law to expound on certain definitions, to permit an employer to cap accrual, and to clarify the method of payment for piece rate and commissioned employees.	1/1/2018
SB 769	Privacy: Social Security Numbers	Adds new privacy protections for Social Security numbers, including the disposal of material or media with such information.	1/1/2018
SB 828²³	Predictive Scheduling	Requires employers with 500+ employees (in retail, hospitality, and food services) to provide new hires with a good-faith estimate of work schedules, including average monthly hours. Mandates that employers provide advance notice of schedules: 7 days advance notice as of 7/1/2018, and 14 days as of 7/1/2020. Premium payments apply for changes to the posted schedule. Also requires a minimum 10-hour rest period between shifts.	7/1/2018

Puerto Rico
Law	Main Topic	Summary	Effective Date
Act No. 16-2017²⁴	Equal Pay	Creates Puerto Rico Equal Pay Act (PR EPA). Bans salary history inquiries and prohibits pay discrimination based on sex as among employees performing comparable work requiring the same skill, effort, or responsibilities under similar conditions. While this law took effect in 2017, enforcement and liability for private employers attaches a year after enactment.	3/8/2018
Act No. 61-2017	Equal Pay	Requires certain government contractors to comply with the PR EPA. While this law took effect in 2017, enforcement and liability attaches a year after enactment.	8/1/2018

Rhode Island
Law	Main Topic	Summary	Effective Date
HB 5152	Cellphones & Driving	Amends current restrictions to allow drivers to activate, view, or deactivate a navigation or GPS device while driving.	10/11/2017
HB 5182, SB 175	Cellphones & Driving	Bans all mobile phone use (not just texting) by drivers, with certain exceptions, including hands-free devices.	6/1/2018
HB 5413, SB 290²⁵	Protected Time Off: Paid Sick Leave	Permits employees (working for employers with 18+ employees in the state) to accrue and use paid sick and safe time, up to 24 hours in 2018, with increases in following years. Requires employers to pay the employee’s same rate and maintain benefits during leave.	7/1/2018
SB 676	Workers’ Cooperatives	Creates a statutory vehicle for the organization and operation of workers’ cooperatives, i.e., corporations owned and democratically governed by their members.	1/1/2018

Utah
Law	Main Topic	Summary	Effective Date
SB 249	Tax Withholding	Requires that employers submit quarterly withholding returns electronically.	1/1/2018

Vermont
Law	Main Topic	Summary	Effective Date
HB 136	Pregnancy Accommodations	Makes it unlawful for employers to refuse to provide reasonable accommodation for an employee’s pregnancy-related condition, absent undue hardship.	1/1/2018
HB 462	Privacy: Social Media Accounts	Prohibits employers from requiring or requesting that employees or applicants disclose personal social media account information (including usernames), access an account in the employer’s presence, change account privacy settings, etc.	1/1/2018

Virginia
Law	Main Topic	Summary	Effective Date
HB 1646, SB 1333	Wage Garnishment	Lowers the maximum portion of disposable earnings subject to garnishment.	7/1/2018

Washington
Law	Main Topic	Summary	Effective Date
SB 5975	Protected Time Off: Paid Family Leave	Beginning 1/1/2020, entitles eligible employees to 12 weeks of paid time off for the birth or adoption of a child, or for the serious medical condition of the employee or a family member. Employers with 50 or fewer employees are exempt from employer contributions. Includes notice duties.	12/31/2019
Initiative No. 1433²⁶	Protected Time Off: Paid Sick Leave	Entitles all employees to accrue paid sick leave, at a rate of 1 hour per 40 hours worked, with carryover to the next year. Relatedly, the Department of Labor & Industries is evaluating proposed regulations on the paid sick leave law.²⁷	1/1/2018

¹ Ilyse Schuman & Michael J. Lotito, WPI Insider Briefing: Will the New Composition of Federal Agencies Effect Change?, Littler Report (Oct. 24, 2017).

² See, e.g., Jorge R. Lopez, Sean M. McCrory & Shireen Judeh, Employers Should Prepare Now for Increased ICE Enforcement, Littler ASAP (Nov. 8, 2017); Patrick O’Brien & Jorge Lopez, USCIS’s Updated Policy on Adjudications of Nonimmigrant Worker Visa Petitions Rescinds Former Deferential Policy, Littler ASAP (Oct. 30, 2017); Shin-I Lowe, White House Releases Trump Administration Immigration Policy Priorities, Littler ASAP (Oct. 11, 2017); Jorge Lopez & Shireen Judeh, New Presidential Proclamation Restricts Travel from Eight Countries, Littler ASAP (Sept. 26, 2017).

³ Ilyse Schuman & Michael J. Lotito, President Trump Issues Executive Order to Reshape Health Insurance Market, Littler ASAP (Oct. 12, 2017).

⁴ See Michael J. Lotito & Ilyse Schuman, House Introduces Bipartisan Bill Designed to Ease Joint Employer Uncertainty, Littler ASAP (July 27, 2017).

⁵ Ilyse Schuman & Michael J. Lotito, Republican Lawmakers Try New Approach to Paid Leave, Workplace Flexibility, Littler ASAP (Nov. 2, 2017).

⁶ See, e.g., Ilyse Schuman & Michael J. Lotito, WPI State of the States: Lawmakers Keep Their Focus on Equal Pay Measures, WPI Report (Nov. 1, 2017).

⁷ See also Bruce Sarchet, Corinn Jackson & Betsy Cammarata, With Governor Brown’s Signature, California Employers Face a Gauntlet of New Laws, Littler Insight (Oct. 16, 2017).

⁸ Bruce Sarchet, New California Law Prohibits Salary History Inquiries, Littler ASAP (Oct. 13, 2017).

⁹ Gayle Gonda, Michelle White & Jorge Lopez, New Law Governs Immigrant Worksite Enforcement Actions in California, Littler ASAP (Oct. 19, 2017).

¹⁰ Rod Fliegel & Allen Lohse, California Statewide Ban-the-Box Law Signed By Governor, Littler Insight (Oct. 16, 2017).

¹¹ Alexis Sohrakoff, California Will Require Small Businesses to Provide 12 Weeks of Unpaid, Protected Leave for Baby Bonding Purposes, Littler ASAP (Oct. 13, 2017).

¹² Bruce Sarchet & Corinn Jackson, Another San Francisco Treat: Mayor Lee Signs Salary History Ban, Littler ASAP (July 20, 2017).

¹³ Joon Hwang, Delaware Enacts Law to Address Gender Pay Gap By Prohibiting Employers From Requesting Compensation History of Job Applicants, Littler ASAP (June 19, 2017).

¹⁴ Christopher Kaczmarek, Stephen Melnick & Joseph Lazazzero, Massachusetts Adds Teeth to Equal Pay Obligations, Littler Insight (July 28, 2016).

¹⁵ Christopher B. Kaczmarek & Shannon M. Berube, Massachusetts Expands Employers’ Obligation to Accommodate Pregnant Employees, Littler ASAP (July 27, 2017).

¹⁶ The St. Paul final rules are available here.

¹⁷ Rick Roskelley, Nevada Mandates Employer Provided Leave and Accommodations for Victims of Domestic Violence, Littler Insight (June 30, 2017).

¹⁸ Stephen Fuchs & Jill Lowell, New York Issues Final Paid Family Leave Law Regulations, Littler Insight (Aug. 9, 2017); Stephen Fuchs & Bruce Millman, Understanding New York’s New Paid Family Leave Law, Littler Insight (May 23, 2016).

¹⁹ María Cáceres-Boneau, Jean Schmidt & David M. Wirtz, New York City Set to Ban Inquiries About Salary History, Littler ASAP (Apr. 14, 2017).

²⁰ Jill Lowell & Sebastian Chilco, New York City Expands Types of Leave Covered by Paid Sick Leave Law, Littler ASAP (Nov. 8, 2017).

²¹ Eli Z. Freedberg, Christine L. Hogan, Bruce R. Millman & Michael J. Lotito, New York City Enacts Laws Limiting Employers’ Flexibility To Staff Employees, Littler Insight (June 2, 2017) (discussing this package of “fair workplace” ordinances affecting fast food and retail operations); see also Eli Freedberg & Christine Hogan, The DCA Has Issued Proposed Rules for the New York City Fair Workweek’s Predictive Scheduling Laws, Littler Insight (Oct. 25, 2017) (discussing rules promulgated by the New York City Department of Consumer Affairs interpreting and expanding the fair workplace ordinances).

²² Adam Brauner, Oregon Clarifies Paid Sick Leave Law, Littler ASAP (July 13, 2017).

²³ Matt Scherer, New Oregon Law Imposes Scheduling and Working Hours Obligations on Employers, Littler ASAP (Aug. 14, 2017).

²⁴ Mariela Rexach & Ana Beatriz Rivera-Beltrán, Puerto Rico Employers Prepare for New Guidelines Governing Equal Pay in the Workplace, Littler ASAP (Aug. 14, 2017); José Dávila Caballero & Mariela Rexach, Puerto Rico Adopts Local Equal Pay Act, Littler ASAP (Mar. 9, 2017).

²⁵ Jillian Folger-Hartwell & Sebastian Chilco, On the Rhode Again: Paid Sick Leave Drought Ends with New Rhode Island Law, Littler Insight (Oct. 2, 2017).

²⁶ Pamela Salgado, Breanne Martell & Vanessa Lee, New Minimum Wage and Paid Sick Leave Laws for Washington Employers, Littler Insight (Dec. 22, 2016).

²⁷ The proposed Washington regulations and other information about this initiative are available here.