Q: Are there any new laws or regulations that I should know about as we enter 2021?
A: The year 2020 undoubtedly presented many challenges to employers in keeping up with seemingly ever-changing laws and regulations, in large part due to the COVID-19 pandemic that swept our nation. As employers leave the previous year behind and begin focusing on what will follow in 2021, it is important to be mindful of various significant labor and employment law changes — in addition to those specifically related to COVID-19. Below are summaries of key non-COVID-related issues that employers should know about now and in the year ahead.
- Minimum Wage Increases. Although the federal minimum wage will remain the same this year, many states and localities across the country have implemented increases to their minimum wages. (Note: As a general reminder, where a state or locality has implemented a minimum wage rate that is higher than the federal rate, covered employers are required to pay the higher rate.) For example, as of January 1, 2021, California’s minimum wage increased to $14/hour for employers with 26 or more employees (and is even higher in some California cities, such as San Jose). New Jersey’s minimum wage increased to $12/hour for employers with six or more employees, and it will continue to increase in $1/hour increments for the next three years.
- Increases in Minimum Salary Threshold for White Collar Exemptions. Employers should continue to pay attention to states, where the so-called “white collar” (e., executive, administrative, and professional) exemption salary threshold for overtime pay exceeds the federal minimum salary level of $35,568 annually. This list includes Alaska, California, Colorado, Maine, New York, Pennsylvania (effective October 3, 2021), and Washington.
- EEO-1 Reporting. As noted in a previous post, the Equal Employment Opportunity Commission (EEOC) postponed its annual collection of EEO-1 demographic data until 2021 in light of the circumstances surrounding the COVID-19 outbreak. Unless there are further delays, all covered employers (including private employers with at least 100 employees) should expect to file their 2019 and 2020 EEO-1 demographic data (summarized by race, ethnicity, gender, and job category) as early as March. Additionally, California recently passed its own legislation requiring private employers with 100 or more employees to submit to the state’s Department of Fair Employment and Housing (DFEH), on or before March 31, 2021 and each year thereafter, a more extensive pay data report covering the prior calendar year that includes the number of employees by race, ethnicity, and sex. The DFEH issued guidance that can be found on its website here.
- Equal Pay. State laws continue to expand prohibitions of sex-based wage discrimination. Colorado, for example, prohibits employers from seeking prospective employees’ salary histories, permits employees subject to wage discrimination to file a civil action, and provides for economic damages in the event of a violation, including liquidated damages. The law also requires that all job postings must disclose compensation and a description of benefits offered with the position, including internal promotion opportunities that must be announced to current employees. Maryland is another state that recently enacted legislation to prohibit employers from requesting certain salary history information from applicants. Other states and localities that adopted salary history ban legislation include Alabama, California, Cincinnati (OH), Connecticut, Delaware, Hawaii, Illinois, Kansas City (MO), Maine, Massachusetts, New Jersey, New York, New York City, Oregon, Philadelphia, Puerto Rico, San Francisco, Toledo (OH), Vermont, and Washington.
- Predictive Scheduling. Employers should be aware of laws that require them to post employee work schedules a fixed number of days in advance of when the work is to be performed. On January 1, 2021, the City of Chicago joined the ranks of various jurisdictions (including Oregon, Washington, D.C., New York City, Philadelphia, San Francisco, and Seattle) by implementing its own predictive scheduling ordinance. The Chicago Fair Workweek Ordinance requires certain employers to provide at least 10 days’ advance notice of work schedules to their covered employees (which will increase to 14 days on July 1, 2022), additional wages to covered employees for schedule changes made after the date on which the schedule was required to be posted, premium pay to covered employees if the employee receives a break that is less than 10 hours between shifts, and a good-faith estimate of days and hours of work to new hires. Covered employees have a private right of action against employers for violations of the ordinance.
- Anti-Discrimination and Accommodation Laws. There are several new state anti-discrimination, harassment, and accommodation laws now in effect. Additional states and localities have adopted anti-discrimination laws based on hairstyles and hair textures associated with race (Colorado, Maryland, and Pittsburgh and Allegheny County, Pennsylvania), as well as accommodation laws related to pregnancy and lactation (Georgia, South Carolina, Tennessee, and Virginia).
- “Ban the Box.” A large majority of states and more than 150 municipalities adopted “ban the box” laws that prohibit employers from asking job applicants about their conviction or arrest records on their initial applications. California and Hawaii recently strengthened their preexisting laws, and the City of St. Louis, Missouri passed its own ordinance, which applies to employers with 10 or more employees. (Note: New York City passed a bill expanding the scope of its “ban the box” law, effective January 10, 2021; Montgomery County, Maryland also enacted an amendment to its “ban the box” legislation, which will take effect on February 19, 2021).
- Paid Leave Laws. States and localities continue to pass generous paid family and medical leave and paid sick laws. California is undergoing several changes to its laws, including extending paid family leave coverage for exigency leave, as well as clarifying that employees may choose whether or not to use their accrued sick leave to care for an ill family member. Massachusetts now allows employees to take paid family and medical leave, and as of January 1, 2021, Connecticut employers are required to withhold employee contributions in connection with the state’s Paid Family and Medical Leave program. Colorado and New York now have paid sick leave laws, and Maryland recently amended its paid sick leave law to expand the definition of “family member.” Finally, Maine adopted an extensive paid leave law for businesses with at least 25 employees (at least 10 of whom are in Maine), where workers can accrue up to 40 hours of paid leave per year and use it for any reason.
- Voting Leave Laws. Although the closely monitored elections from 2020 may be over, state law changes to voting leave likely are not. For example, New York amended its voting leave law to allow employees without sufficient time outside of work hours to request up to two hours of paid time off on an election day, so long as they submit a timely request (the state issued guidance on its website here). Washington, D.C. also now permits employees to take up to two hours of paid time off to vote.
- Marijuana and the Workplace. Arizona, Montana, Mississippi, New Jersey, and South Dakota recently joined the emerging trend to legalize the recreational and/or medical use of marijuana. The legalization of marijuana poses certain challenges to employers who maintain workplace drug and alcohol policies, as well as drug testing programs. Employers should examine their policies and programs to make sure they adhere to the jurisdictional laws where they operate and balance workplace safety with these laws in order to avoid potential liability.