sign in sign up
<<
Home , Minimum wage law

State labor enacted in 1997

Minimum rates rose in a majority of the States, while other labor were enacted to modify family leave, protect employers disclosing job performance information, and ban employment discrimination because of genetic testing

Richard R. Nelson

greater volume of State legislation was enacted in Federal rate that became effective September 1997 than in the past few years.’ Laws of major sig- 1, 1997. Rates also rose in eight States and Guam where the A nificance were enacted in several employment stan- adopts the Federal rate by reference? and in six dards subject areas, including the traditional fields of mini- States and the District of Columbia where the jurisdiction links mum wage protection, prevailing wage and child labor as well the rate to that of the Federal.4 Rates increased in an addi- as in newer areas of parental leave, immunity from liability for tional five States as the result of prior , administrative ac- providing job information, restrictions on drug and alcohol tion, or successful ballot measures.s testing, and bans on employment discrimination because of As of January 1,1998, minimum wage rates higher than the sexual orientation or genetic testing. A few important Federal standard are in effect in Alaska, Connecticut, the Dis- decisions also affected employment standards laws. trict of Columbia, Hawaii, , and . This article provides a summary of significant enactments Permissible tip credit provisions, which allow employers in labor legislation. It does not, however, cover occupational to use tips received by employees to meet a portion of the safety and health, employment and training, labor relations, minimum wage, were revised in , Idaho, Maryland, employee background clearance, and economic development Michigan, North Carolina, North Dakota, and Vermont. legislation. Articles on unemployment insurance and workers’ enacted a law prohibiting any parish or munici- compensation appear elsewhere in this issue of the Monthly pality from establishing a minimum wage rate, and an Labor Review. law prohibits any political subdivision from adopting a rate that exceeds the Federal minimum wage rate. Neither Arizona . Minimum wage was the most active area of State or Louisiana have State minimum wage laws. labor legislation and activity again this year as it was last year. Other significant minimum wage and overtime develop- Minimum wage rates were increased under Federal law and in ments include elimination of overtime pay after eight hours a 3 1 States, the District of Columbia, and Guam. day for workers under four wage orders in ; exempt- Much of the State activity was in response to the Federal ing agricultural employees from overtime pay requirements in minimum wage rate increases enacted August 20, 1996. New Rhode Island; and permitting limited use of compensatory time laws, wage orders, or administrative actions raised rates in 12 off in lieu of overtime pay in Michigan. Boston, Duluth, Los States in 1997.2 Ten of these rates match the $5.15 per hour Angeles, and New Haven were among cities enacting “” measures that establish a minimum wage rate in con- tracts led by the jurisdiction. Richard R. Nelson is a State Standards Adviser in the Offke of External The Michigan prevailing wage law is again being enforced Affairs, Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor. following a court decision reversing an earlier ruling that had

Monthly Labor Review January 1998 3 State Labor Laws

held the law “invalid and unenforceable.” State public works have earned a general equivalency diploma will be exempt prevailing wage laws are currently in effect in 3 1 States. from the youth employment law. Several bills were introduced this year to enact, repeal, or Restrictions were added in some as in Guam modify prevailing wage laws. Among those enacted, coverage where limits were placed on the hours of employment of 16- of the Montana law applicable to public construction and 17-year-olds during non-school nights and restrictions was expanded to include public works service contracts. Cov- were placed on minors employed in theatrical employment, erage was reduced in Ohio where the prevailing wage law and in Florida where employment involving nudity was will no longer apply to public school construction. prohibited. Issues of liability for unpaid or underpaid prevailing wages were addressed in California and Oregon, and contractors in Equal employment opportunity. Bans on various forms of Nevada will now be liable for a civil penalty for failure to employment discrimination were again adopted by several report each worker employed on the public work to the labor State . For example, Arizona, North Carolina and commissioner and the public body awarding the . Texas continued a recent trend by passing laws banning em- Other significant wage legislation included enactment of ployment discrimination against individuals based on the re- an Unpaid Wages Protection Act in ; an amend- sults of genetic test results. Another trend continued with ment in California making penalties in the payment of wages and New Hampshire banning employment discrimina- law applicable to failure to pay agricultural workers; and tion because of sexual orientation. New York and Oregon made amendments to North Dakota provisions relating to investi- it an unlawful discriminatory practice not to provide reason- gation and enforcement of wage claims to allow the labor com- able accommodations to workers with disabilities. missioner to consider any offsets, deductions, or counterclaims Rhode Island will now require all employers of 50 or more asserted by an employer during the investigation. to promote a workplace free of sexual harassment. Also, its Virginia became the 28” State to adopt legislation permit- ban on age discrimination now applies to all individuals over ting reciprocal agreements with other States for the collec- age 40. Several Louisiana employment discrimination provi- tion of claims for wages, fringe benefits, and penalties. sions were consolidated in a new chapter, and employment discrimination because of sickle cell trait was added as a pro- Family issues. Coverage of the Maine Family Medical Leave hibited form of discrimination. Coverage of the law, law was expanded to include employees who work for smaller banning various forms of employment discrimination, was sized firms. expanded to include municipalities and counties. On-the-other- As the result of new legislation, administration and enforce- hand, this law was amended to reduce coverage from employ- ment of the family leave law and a law in Nevada ers of 15 or more to employers of 20 or more. applicable to State employees is going to stop unless the Federal Family and Medical Leave Act is either repealed or amended to Drug and alcohol testing. Several significant laws were en- provide less leave than is provided under the State law. acted relating to the of employee drug and alcohol In related legislation, Vermont employers are now to al- testing. Comprehensive laws of general application were en- low 24 hours of leave in a 12-month period for employees to acted in Alaska and , and a law applicable to the participate in school functions, go to medical appointments, private sector was adopted in Idaho. Coverage of the Mon- and to meet similar obligations. The California law permit- tana drug and alcohol testing act was expanded to include the ting leave to attend school functions was extended to include public sector. child day care functions. Testing also will be required of apphcants for employment with the Arizona Department of Public Safety, applicants for Child labor. More child labor legislation was enacted in jobs maintaining or operating public vehicles in Louisiana, 1997 than in the past few years. Much of what was enacted Mississippi Department of Corrections employees, and school permits children to work at either younger ages, for longer bus drivers in Missouri. hours, or in additional occupations. Longer hours will be per- In other legislation, amendments to the Rhode Island law mitted in specific instances in Illinois, Maine, Michigan and included the addition of conditions where an employee whose Oregon. Minors may work at a limited number of additional testing indicates any continued use of controlled substances occupations in Arkansas, California, Maine and Utah. Provi- may be terminated, and the Maryland law relating to job re- sion was made in California for excusing children from school lated drug testing was amended to authorize the use of hair while working in the entertainment or allied industries. specimen testing for testing of applicants. Wyoming eliminated the requirement for a work permit for children under age 16 and replaced it with a requirement Workerprivacy. Over the last few years, several States have that the employer maintain a proof of age. In New Hamp- passed legislation providing immunity from civil liability for shire, 17-year-olds who have graduated from high school or employers who provide information about the job performance

4 Monthly Labor Review January 1998 of a current or former employee to a prospective employer. amended to change the role of the labor department when there Laws of general application of this kind were enacted this is a violation and to permit civil action by employees. year in Iowa, Nevada, North Carolina, North Dakota, and Oregon. Laws regulating the release of employee personal in- State labor departments. State labor departments were the sub- formation were adopted or amended in Maine, North Caro- ject of several important pieces of legislation in 1997. For ex- lina, and Oregon. ample, the Utah Industrial Commission was eliminated and replaced with a Labor Commission, the Louisiana Department Private employment agencies. The trend to lessen regulation of Labor was reorganized, and the name of the Wisconsin of private employment agencies continued this year with Or- Department of Industry, Labor and Job Development was egon repealing licensing and related requirements for all agen- changed to the Department of Workforce Development. cies and Arkansas exempting employer fee-paid firms from The Maine Bureau of Labor Standards was strengthened as licensure requirements. the Director was given rule-making authority for all wage and Among other legislation, North Dakota modified the re- hour and other related laws that the Bureau is charged with quirement for a refund to employees if a job ends or the em- enforcing. ployee is fired or laid off before the end of 90 calendar days. Among other developments, a Council on Undocumented Also, temporary employment services in Texas may not dis- Aliens was established within the New Jersey Department of criminate against individuals who have not graduated from high Labor with responsibility for studying the undocumented alien school or earned a graduate equivalency diploma. worker population in the State, and the New York Labor Com- missioner is to assist the Office for the Prevention of Domes- Preference. Developments relating to residential preferences tic Violence in adopting and promoting a model domestic vio- in awarding public construction contracts occurred in Penn- lence employee awareness and assistance policy. sylvania and Arkansas. The Pennsylvania law requiring con- tractors on State-funded public works projects to employ only Other laws. Among other laws of interest, job protection was State residents was ruled unconstitutional. In Arkansas, a law provided for employees absent from work because of National was adopted barring counties from allowing a resident prefer- Guard duty in Colorado and North Carolina and because of ence in the awarding of construction contracts unless a prefer- civil air patrol service in Minnesota. Public employers in Mary- ence is authorized by State law. land may not require an employee to live in the State as a con- dition of employment. Minnesota made it unlawful to assault Whistleblower. A new whistleblower law was enacted in Loui- an occupational safety and health investigator while engaged siana barring reprisal against an employee who discloses an in the performance of his or her work. Various archaic provi- unlawful workplace act or practice, testifies or provides infor- sions pertaining to the employment of women were repealed mation before a public body, or refuses to participate in an in Arkansas, including provision of accessible seats at unlawful employment act or practice. The Colorado worksites. whistleblower law was amended to increase penalties for those The following is a summary, by jurisdiction, of labor legis- engaging in retaliatory conduct, and the North Dakota law was lation enacted in 1997.

Akrbama Equal employment opportunity. An amend- Alaska ment to the law banning employment discri- Wages. The State recognized mination expands coverage by now includ- Wages. The State minimum wage rate is set April 11,1997 as National Pay Inequity Day ing municipalities and counties. However, by law at 50 cents more than the Federal Fair 1997. On this day American women’s wages coverage was eliminated for some workers Labor Standards Act rate. Therefore, the State for 1997, when added to their 1996 earnings, by making the law now apply to employers rate rose from $5.25 per hour to $5.65 on equaled what men earned in 1996 alone. Gov- with 20 or more employees in the current or September 1, 1997. ernment officials, agencies, preceding calendar year, rather than those business and industry leaders, educators, and with 15 or more workers as was previously Employee testing. A comprehensive law all people of Alabama were asked to recog- provided. was enacted regulating employer drug and nize the value of women’s skills and contri- alcohol testing programs. An employer may butions to the labor force, and employers Other laws. A resolution was adopted desig- only carry out testing or retesting for the pres- were urged to review their wage-setting prac- nating September 1-7, 1997 as Union Label ence or use of drugs or alcohol after adopt- tices and to insure that all employees, par- Week in recognition and in honor of those ing a written policy and informing employees ticularly women and people of color, are paid emblems which signify commitment to qual- of the policy. The policy must include: a state- fairly for their work. ity and dignity in the American workplace. ment of the employer’s policy on employee

Monthly Labor Review January 1998 5 State Labor Laws

drug and alcohol use; a description of those cluding sexual assault, threats of violence to amended to exempt from licensure require- employees or prospective employees subject the employee, continuous discriminatory ha- ments those agencies that contract with em- to testing; a description of testing methods rassment, or similar kinds of conduct) by an ployers to recruit employees without charge and collection procedures to be used; the employer or managing agent of the employer to the prospective employee. consequences of a refusal to participate in if such conduct would compel a reasonable the testing; the right of an employee to ex- employee to resign and b) of objec- Preference. No county is to allow prefer- plain a positive test result; and a statement tively difficult or unpleasant working condi- ences in the awarding of construction con- of the employer’s policy regarding the con- tions that would compel a reasonable em- tracts unless a bidding preference for fiis fidentiality of test results. Testing is permit- ployee to resign if the employee notifies the that reside in the county or in the State is ted for investigation of possible employee employer of the conditions in writing and the authorized by a State law. impairment, investigation of workplace ac- employer fails to respond in writing to the cidents, and for maintenance of safety and employee’s concerns within 15 days. An Other laws. Various archaic provisions per- productivity. Employers may also require employer’s right to a 15-day notice is for- taining to the employment of women were employees to undergo random drug testing. feited if the employer fails to provide written repealed. These included provision of acces- Procedures were established for the collec- notice to employees of their responsibility. sible seats at the worksite, and a requirement tion of samples, testing procedures and con- for either suitable lunchrooms at the estab- fidentiality of results. Employees have a Arkansas lishment or a l-hour meal break for female right to a confirmatory drug test after an ini- employees. tial positive drug test. An employer may take Wages. New legislation increased the State In lieu of actual inspection of an opera- adverse employment action based on a posi- minimum wage rate from $4.25 per hour to tional amusement ride by the Department of tive test or the refusal of an employee to pro- $4.75 on July 1, 1997, and to $5.15 on Oc- Labor, an authorized insurance carrier pro- vide a sample for testing. Protection from tober 1, 1997. viding coverage for the amusement ride may litigation is provided for employers with es- The Department of Labor’s authority to provide a safety inspection report to the de- tablished drug and alcohol programs for ac- initiate legal action to recover wages due to partment. The inspection must be made at any tions taken in good faith based on positive employees under the minimum wage and pre- new location and before operation begins. test results. vailing wage laws was amended to specify A resolution was adopted requesting that action may not be brought until after county and city governments in the State to notice and opportunity for hearing as pro- Arizona adopt policies similar to those of the Federal vided by the Administrative Procedures Act and State governments that require prospec- and entry of a final administrative order. Fol- Wages. No political subdivision of the State tive employees, who must register with the lowing any appeals, the director is entitled to will be permitted to establish, mandate, or selective service system, to certify compli- enforce his or her final administrative order otherwise require a minimum wage rate that ance with the Selective Service Act in court. The director’s findings of fact shall exceeds the Federal minimum wage. Arizona as a condition for employment. does not have a State minimum wage law. be conclusive in these proceedings. Despite this legislation, on September 17, California the State Supreme Court ruled that an initia- Child labor. The child labor law was tive could be placed on the ballot, in the No- amended to exempt employees of churches Wages. The State minimum wage rate rose vember general election, that would establish caring for children during short periods of from $4.75 per hour to $5.00 on March 1 as a minimum wage rate in Tucson of $7.00 an time while parents are attending church ser- the result of passage of Proposition 210 in hour. This ballot initiative was defeated. vices or functions. The child labor law will the November 1996 general election. It rose also not apply to any child employed for pur- again to $5.15 per hour on September 1 as Equal employment opportunity. It was poses of domestic labor defined as occa- the result of an order, issued in 1996 by the made an unlawful employment practice for sional, irregular, or incidental work related State Industrial Commission, adopt- an employer to fail or refuse to hire, to dis- to and in or around private residences includ- ing Federal minimum wage rate increases. charge, or to otherwise discriminate against ing, but not limited to babysitting, petsitting, The State rate will increase to $5.75 on any individual based on the results of a ge- and similar household chores, and manual March 1, 1998 as the result of Proposition netic test received by the employer. yard work. Domestic Labor does not include 210. industrial homework; work for a third party, The State Industrial Welfare Commission Employee testzng. The law relating to drug such as a sitting service; or anything deter- adopted regulatory changes on April 11 to testing of employees was amended to permit mined to be hazardous by the Director of the eliminate overtime pay after 8 hours a day testing of applicants for employment with the Department of Labor. effective January 1, 1998 for workers under State Department of Public Safety. The act regulating greyhound racing fran- wage and hour orders applicable to the manu- chises was amended to allow the employment facturing industry; professional, technical, Other laws. The conditions under which an of persons under age 18 at these facilities. clerical, mechanical and similar occupations; employee may make a claim of constructive public housekeeping industry; mercantile in- discharge were codified. These conditions Private employment agencies. The law dustry; and transportation industry. Daily are: a) evidence of outrageous conduct (in- regulating private employment agencies was overtime requirements found in the other 10

6 Monthly Labor Review January 1998 orders remain unchanged. Overtime payment The law that prohibits an employer from day. These students may not work for more is required for all employees working more paying any employee a wage less than the mini- than 5 hours on any school day, for more than than 40 hours per workweek. The commis- mum rate, fixed by an order of the Industrial 18 hours during any week while school is in sion also eliminated the 54hour workweek Welfare Commission was amended to increase session, for more than 8 hours on any exemption for personal attendants, individu- the amount of the civil penalty from $100 to nonschool day, or for more than 40 hours als who are responsible for children under $250 for any subsequent violation of the same during any week that school is not in ses- 18 years of age receiving 24hour care, and specific offense. sion. Employment must be with the prior resident managers of homes for the elderly. Penalties in the payment of wages law for written approval of either the child’s school The exemption remains for camp counselors. failure to pay wages when due will now ap- district or the county board of education of Employees working under the five orders ply for failure to pay agricultural employees. the county in which that school district is lo- where daily overtime was eliminated may Agricultural employees will now also be cov- cated. The school authority that issues a par- now voluntarily waive a meal period when ered by the provision generally entitling an ticipating child’s work permit is required to working more than 8 hours in any one day. employee, who quits his or her employment monitor the academic achievement of the A concurrent resolution was adopted de- after providing a 72-hour notice, to immedi- child and to ensure that his or her educational claring that the action of the Industrial Wel- ate payment, and an employee who quits progress is being maintained or improves fare Commission, in amending various wage without providing notice to payment within during the period of employment. orders to eliminate the requirement to pay 72 hours. overtime compensation for work in excess Agriculture. Every occupant of employee of 8 hours per day, is in conflict with the in- Family zssues. The law permitting parents, housing is required to properly use the fa- tent of the legislature, exceeds the Com- guardians, or grandparents having custody cilities furnished and to comply with the rel- mission’s authority, and eliminates employee of children in kindergarten through grade 12 evant maintenance and sanitation provisions protections. to take leave to participate in school activi- of the Employee Housing Act. Deliberate or The legislature also voted to eliminate ties was amended to also provide this leave negligent actions, or both, by the occupants funding for the Industrial Welfare Commis- to participate in activities of a licensed child do not constitute a cause of action against sion in the State’s 1997-98 budget, forcing day care facility. The maximum hours that the property owners, nor do they relieve the the Commission to cease operation on Au- may be taken off by an employee were owner from repairing the property prior to gust 11. changed from 40 hours each school year to new occupants moving in. The prevailing wage law was amended 40 hours each year, not exceeding 8 hours a to make subcontractors who violate prevail- month. These parents, guardians, or grand- Colorado ing wage payment requirements, on public parents are also protected from discharge, works projects, liable for applicable penal- threats of discharge, demotion, suspension, Wages. Minimum Wage Order No. 21 was ties and amounts due their workers who were or other discrimination because they use this adopted raising the minimum wage rate from paid wages less than, and in violation of, leave. The law is applicable to employers of $4.75 to $5.15 per hour on October 1, 1997, prevailing wage requirements. If a worker, 25 or more employees. for employees of businesses not covered by employed by a subcontractor is not paid the the Federal minimum wage law. As under prevailing wage, the prime contractor of the Child labor. A pupil who holds a work per- Federal law, employers of employees who project is not liable for any penalties or mit to work for a period of not more than 5 receive tips for their work must pay a cash amounts otherwise due unless me prime con- consecutive days in the entertainment or al- wage of at least $2.13 per hour with the re- tractor had knowledge of that failure of the lied industries is to be excused from school mainder of the minimum wage to be made subcontractor. Contractors are required to while working in such employment for up to up from tips. withhold moneys due a subcontractor in an 5 absences per school year. The pupil must amount sufficient to pay the wages that are receive instruction from a certified studio Hours. Intrastate ready-mix concrete truck the subject of a claim filed with the Divi- teacher during the absence from school. Pu- operators are not permitted to drive more than sion of Labor Standards Enforcement if the pils also are to be excused from school to 70 hours during 7 consecutive days, if the body awarding the contract has not withheld participate with a nonprofit performing arts employing motor carrier does not operate sufficient moneys to pay the wage claims. organization in a performance for a public every day in the week, or more than 80 hours Unpaid wages determined owed to workers school audience for up to 5 days a school during 8 consecutive days if the employing who cannot be located by the Labor Com- year with approval of their parents or guard- motor carrier operates motor vehicles every missioner are to be deposited in the Indus- ians. School districts are to allow these pu- day of the week. Twenty-four consecutive Relations Unpaid Wage Fund. pils to complete all assignments and tests hours off duty will constitute the end of any A resolution was adopted declaring that missed during the absence. 7 or 8 consecutive-day period. Within a 7- the legislature has relied on long-established The child labor law was amended to per- day workweek all hours of service after 60 definitions of the general prevailing rate of mit minors aged 14 and 15 to be employed hours are to be voluntary beginning the next per diem wages in amending and extending in providing sports-attending services (such scheduled work day. the State prevailing wage law on numerous as bat boys and bat girls) at professional base- occasions, and that it would be contrary to ball games until 12:30 a.m. during any School attendance. The law requiring the the intent of the legislature for those defini- evening preceding a nonschool day and until compulsory school attendance of children 7 tions to be changed by administrative action. 10 p.m. on any evening preceding a school to I6 years old was amended to also apply to

Monthly Labor Review January 1998 7 State Labor Laws

6- year-old children who have been enrolled from causmg an entry m the authority’s or mg more than 10 hours following 8 consecu- in a public school in the first grade or higher supervisor’s personnel record to receiving a tive hours off duty or for any period after and have not been withdrawn. If a child is disciplinary action that remains a permanent having been on duty 15 hours following 8 not in compliance, the may issue or- part of the authority’s or supervisor’s person- consecutive hours off duty. Driving is also ders to the child or the child’s parent or both nel file. The disciplinary action is to be ap- prohibited for any individual who has been to compel compliance with the requirements. propriate depending on the nature and sever- on duty 60 hours in any 7 consecutive days Attendance requirements and enforcement ity of the retaliatory conduct involved, rang- if the employer does not operate commercial provisions will not apply in cases where a ing from a mandatory minimum of l-week motor vehicles every day of the week. Any parent chooses to withdraw a 6-year-old child suspension up to and including termination. individual who has been on duty 70 hours from school. during any period of 8 consecutive days also Other laws. Members of the State national is prohibited from driving if the employing Worker privacy. The antiblacklisting star- guard who are absent from work because of motor carrier operates commercial motor ute was amended to allow lending institu- active service for State purposes will now be vehicles every day of the week. tions, acting in good faith, to disclose infor- entitled to reemployment rights and benefit mation about a theft, embezzlement, or other retention. Reemployment and benefit reten- Child labor. The authority for minors age infraction by a current or former employee tion rights previously applied only to leave 15 and older to be employed in mercantile in response to a request for references. It is from work for military training. establishments, as baggers, cashiers or stock presumed that such institutions act in good clerks under certain conditions, that was due faith unless it is shown by a preponderance to expire September 30, 1997, was extended Connecticut of the evidence that they intentionally or reck- to September 30.2002. lessly disclosed false information about the Wages. By law, the State minimum wage employee. The institution is no longer re- rate automatically increases to % of 1 per- Delaware quired to send a copy of the reference to the cent more than the Federal Fair Labor Stan- Wages. Because the State minimum wage last-known address of the applicant for whom dards Act rate if the Federal minimum equals rate is replaced with the Federal minimum the reference is given. or becomes higher than the State minimum. rate if the Federal rate becomes higher than Accordingly, the State rate increased from the State minimum, the State rate increased Employee leasing. The employee leasing $4.77 per hour to $5.18 on September 1, from $5.00 per hour to $5.15 to match the company regulatory law was amended to rec- 1997, when the Federal rate increased to Federal rate on September 1, 1997. ognize employee leasing companies as the $5.15. co-employer or employing unit (for purposes Several changes were made in the pen- of State law) if the firm meets several tests. alty provisions under the State prevailing District of Columbia These tests include assigning employees to wage law. The provision of a $2,500 to Wages. The District of Columbia minimum the locations of worksite employers; retain- $5,000 fine for each offense of failure to pay wage rate is automatically set at $1 above the ing the right to set the employee’s rate of pay the prevailing wage was amended to add that, Federal minimum wage rate. Therefore, the and to pay employees from its own account; for a first violation, a person will be disquali- rate rose from $5.75 per hour to $6.15 on retaining the right to direct and control the fied from bidding on contracts with the State September 1, 1997. employees; having the right to discharge, re- or any political subdivision until the con- assign, or hire employees for the worksite tractor or subcontractor has made full resti- Florida employer; and being responsible for with- tution of the back wages owed and for an holding and paying applicable taxes and pay- additional 6 months thereafter. For subse- Child labor. The section of the Alcoholic ments to employee benefit plans. quent violations, the disqualification may in- Beverages Law that regulates the employment Small employer insurance carriers now crease to at least 2 additional years. The civil of minors was amended to prohibit the em- may give a discount to small firms that have penalty that may be assessed in addition ployment of minors under age 18 if the em- contracts with employee leasing companies. other penalties provided for violation of the ployment involves nudity on the part of the law was doubled to $300 for each violation. minors. Whistleblowers. Among amendments to the Employers are now to file weekly certified As part of an act relating to student disci- law providing State employees with protec- payroll information monthly, rather than pline and school safety, compulsory school tion from retaliation for disclosure of infor- weekly, with the contracting agency. Failure attendance requirements were revised to re- mation, an employee alleging retaliation must to file the certified payroll is now a class D quire children over age 16 to file a formal file a written complaint with the State per- felony for which the employer may be fined declaration of intent to terminate school en- sonnel board within 30 days after becoming up to $5,000, imprisoned for up to 5 years, rollment in order to be exempt from compul- aware of a disciplinary action. Requirements or both. sory school attendance requirements. The and procedures were specified for the State declaration is to acknowledge that texminat- personnel board to respond to the complaint Hours, Drivers of commercial motor ve- ing school enrollment is likely to reduce the and to conduct an investigation. The penalty hicles involved in emergency-related activi- student’s earning potential and must be for an appointing authority or a supervisor ties may now exceed the hours provided for signed by the child. The school district is to engaging in retaliatory conduct was changed under Federal law. Federal law prohibits driv- notify the child’s parent or legal guardian of

8 Monthly Labor Review January 1998 the child’s declaration. A child who reaches recerve compensatton in lieu of vacation al- Therefore, the State rate rose from $4.75 per age 18 during the school year is not subject lowance. This compensation will be com- hour to $5.15 on September 1, 1997. to compulsory school attendance beyond the puted using the employee’s rate of pay and .4pril 11, 1997 was proclaimed as Na- date upon which he or she attains that age. amount of accrued vacation time on the date tional Pay Inequity Awareness Day in Illi- Among other provisions, the Department of of termination. nois. Government officials, law enforcement Highway Safety and Motor Vehicles is to agencies, business and industry leaders, edu- withhold issuance of or suspend the driver’s Idaho cators, and all citizens of the State were called license or learner’s permit of a student who on to recognize the full value of women and fails to satisfy school attendance require- Wages. New legislation increased the State people of color to the labor force and to en- ments. Also, penalties were adopted for em- minimum wage rate from $4.25 per hour to sure they are paid fairly for their work. ployers who terminate an employee because $4.75 on April 1 and to $5.15 on September he or she is attending school pursuant to a 1, 1997. The tip credit against the minimum Child labor. An amendment was made to court order with a child who is a habitual wage for tipped employees was changed from permit minors aged 14 or older, who are em- truant. 25 percent to 33 percent of the applicable ployed in recreational or educational activi- minimum wage on April 1, and from 33 per- ties by a park district or municipal parks and Georgia cent to 35 percent on September I. Employ- recreation department while school is in ses- ers may pay employees under 20 years of age sion, to work up to 3 hours per school day Agriculture. Resolutions were adopted urg- a minimum wage of $4.25 an hour during twice a week until 9 p.m. if the number of ing the U.S. Congress to work with the U.S. the first 90 consecutive calendar days after hours worked by the minor outside school Department of Labor to streamline the H2A employment. Employers are prohibited from does not exceed 24 per week. Work will be permit program for agricultural employers. displacing employees for purposes of hiring permitted until 10 p.m. during the school individuals at this lower wage. district’s summer vacation, or if the school Guam district operates on a 12-month basis, the Employee testing. A comprehensive Private period during which the minor is not in Wages. The Guam minimum wage law Employer Alcohol and Drug-Free Workplace school. Without this exception, these minors adopts the Federal minimum wage rate by ref- Act was enacted. The law specifies that it is could not work past 7 p.m. during the school erence. Therefore, the rate rose from $4.75 lawful for a private employer to test employ- year or past 9 p.m. during summer vacation. per hour to $5.15 on September 1, 1997. ees or prospective employees for the pres- In addition, the prohibition on minors under ence of drugs or alcohol as a condition of age 16, working where alcoholic liquors are Child labor. Minors 16 and 17 years of hiring or continued employment. Also, the served, sold, manufactured, or bottled will age may not work past 10 p.m. during a employer may use the results of a drug or no longer apply to work performed on prop- school night, not past 12 midnight during alcohol test conducted by a third party as the erty owned or operated by a park district if nonschool nights, and may not work before basis for determining if an employee has com- the employment is otherwise legal. 6 a.m. on any day of the year. mitted misconduct. The private employer Minors employed in theatrical employ- must have a written testing policy that in- Equal employment opportunity. Among the ment (that is, motion pictures, theatrical, tele- cludes: a statement that violation may result provisions of a new Genetic Information Pri- vision, radio, singer, musician, or modeling) in termination; lists the types of tests an em- vacy Act, employers are to treat genetic test- are not exempt from child labor provisions, ployee may be subject to; and is available for ing information in a manner that is consis- and must obtain an employment certificate review by prospective employees. Require- tent with the requirements of Federal law, and submit a statement, signed by an autho- ments for sample collection and testing are including but not limited to the Americans rized school official, stating that the atten- specified, and employees are to have the right with Disabilities Act. dance and school work of the minor is satis- to explain positive test results and to request factory. Such employment is not to exceed 6 retests. Employees may be discharged be- Iowa consecutive days in any calendar week or cause of a confirmed positive drug or alco- more than 40 hours in any 1 week. Also, the hol test; the employee’s refusal to provide a Wages. The State minimum wage rate is re- combined hours of work and school is not to sample for testing; or for the alteration or at- placed with the Federal minimum if it be- exceed 9 hours in any day. Such employment tempt to alter a test sample. Discharge be- comes higher than the State minimum. Be- is not to injuriously affect the health, safety, cause of a positive test will result in denial of cause of this provision, the State rate in- and well-being of the minor or contribute unemployment benefits. Testing is to be at creased from $4.75 to $5.15 on September towards his or her delinquency. the employer’s expense and conducted on 1, 1997. company time. Limitations were placed on Workerprivacy. An employer or employer’s Hawaii employer liability for testing conducted in representative who, upon request by or au- accordance with the act or for failure to test. Wages. The law relating to vacation allow- thorization of a current or former employee, ances on termination of employment was Illinois provides work-related information about that amended to provide that employees, hired individual is immune from civil liability un- after June 30, 1997, whose service is volun- Wages. The State minimum wage law adopts less the information provided: violates a civil tarily or involuntarily terminated, are to the Federal minimum wage rate by reference. right of the current or former employee; is

Monthly Labor Review January 1998 9 State Labor Laws

provided to a person who has no legitimate costs of a pre-employment medical exami- Worker privacy. The law regulating certi- reason for receiving the information; is not nation or drug test if the employee termi- fied stress analysts was amended to exempt, relevant to the inquiry being made; is pro- nates the employment relationship sooner from licensing requirements, those peace of- vided with malice; or is knowingly false. than 90 working days after his or her first ficers who operate stress analysis instruments day of work or never reports to work. or devices in the course and scope of their Private employment agencies. Applications Any employee of the State or of a politi- official law enforcement duties. However, the for employment agency licenses will no cal subdivision in the State may authorize Council on Peace Officers Standards and longer require the affidavits of two reputable his or her employing department, office, or Training is to adopt standards and guidelines State citizens, not connected with the appli- agency to withhold from his or her salary a for the operation of such instruments and cant, certifying the good moral character and specified amount for deposit into a Louisi- devices. reliability of the applicant, or each member ana Student Tuition Assistance and Revenue or officer if the agency is a firm or corpora- Trust Program education savings account. Whistleblowers. Employers ate now barred tion. The affidavits will no longer certify that The withholding request must be voluntary from taking reprisal against an employee the applicant is a citizen of the United States. and in writing. who, in good faith, and after advising the The section of the Private Works Act employer of the violation of law, discloses Inmate labor. Provisions relating to pnson applicable to work performed by general or threatens to disclose a workplace act or inmate employment in private industry were contractors was amended to provide for as- practice that is in violation of State law; pro- amended to provide for the disposition of sessment of civil penalties against contrac- vides information to or testifies before any inmate wages. Following deductions for Fed- tors for failure to pay materialmen and public body conducting an investigation, eral, State, and local taxes and any other pay- laborers. hearing, or inquiry into any violation of law; roll deductions required by law, the Depart- or refuses to participate in an unlawful em- ment of Corrections is to deduct 20 percent Child labor. The section of the child la- ployment act or practice. An employee may of the balance to be credited to the inmate’s bor law relating to issuance of employment bring a civil action in district court against general account. The department will then certificates for minors was amended to re- an employer in violation. “Reprisal” includes deduct from remaining earnings whatever quire written permission of the minor’s par- firing, layoff, loss of benefits, or other dis- sums the inmate is legally obligated to pay ent or legal guardian prior to issuance. criminatory action. for, such as: the support of dependents; court ordered ; 5 percent of the balance Equal employment opportunity. Several Other laws. The Department of Labor was to the victim compensation fund; an amount employment discrimination provisions were reorganized. The Department will be com- the inmate is legally obligated to pay for any consolidated in a new chapter to be known posed of six offices, three of which are new. other financial obligation; and an amount de- as the Louisiana Employment Discrimina- These are the current Office of the Secretary, termined to be the cost to the Department of tion Law. Among new provisions, employ- Office of Management and Finance, and Of- Corrections for providing for the incarcera- ment discrimination against an individual fice of Workers’ Compensation, and the new tion of the inmate. because he or she has sickle cell trait was Office of Occupational Information Services, prohibited. The law, applies to employers Office of Regulatory Services, and Office of with 25 employees or more, for prohibitions Louisiana Workplace and Workforce Development. on discrimination because of pregnancy, Among other changes, the State Job Train- Wages. A law was enacted prohibiting any childbirth, and related medical conditions. ing Coordinating Council was moved from parish or municipality from establishing a For employers having 20 employees or more, the Office of the Secretary to the Office of minimum wage rate. Louisiana does not have the law bans discrimination based on age or Workplace and Workforce Development, and a State minimum wage law. sickle cell trait. And for employers with 15 the Office of Regulatory Services will be re- The section of the Wage Payment law regu- or more employees the law bans discrimina- sponsible for the regulatory programs previ- lating payment following the discharge or res- tion based on disability, race, color, religion, ously administered in the Labor Programs ignation of employees was amended. It now sex, and national origin. Division, including the Minor Laws unit and provides that vacation pay will be considered Private Employment Service unit. an amount due only if, in accordance with the Employee testing. The State is to require It was made unlawful for a public servant employer’s stated vacation policy, the em- drug testing, as a condition of hiring prospec- to use the authority of his or her office or ployee is deemed eligible for, and has accrued tive employees whose jobs would include op- position, directly or indirectly, to compel or the right to take vacation time with pay. The erating a public vehicle, performing mainte- coerce any person or other public servant to employee must not have taken or been com- nance on a public vehicle, or supervising any engage in political activity. pensated for the vacation time as of the date of public employee who operates or maintains the discharge or resignation. a public vehicle. The State is also to imple- Maine The law making it generally unlawful for ment a program of random drug testing of an employer to require forfeiting of an employees engaged in such work. “Public Wages. The State minimum wage rate is re- employee’s wages earned upon discharge or vehicle” is defined as including any motor placed with the Federal minimum if the lat- resignation was amended. It now permits re- vehicle, watercraft, aircraft or rail vehicle ter becomes higher than the State minimum. imbursement, from wages payable, for the owned or controlled by the State. Because of this provision, the State rate in-

10 Monthly Labor Review January 1998 creased from $4.15per hour to $5.15 on Sep- establishments between June 15’hand Labor tion, deferred compensation, savings plans, tember 1, 1997. Day, may now work in these places year- pension plans, health insurance and life in- The State minimum wage and overtime round. However, now these minors are pro- surance. When there is a work requirement law was amended to provide that individuals hibited expressly from working in areas not for public access to personal information that must receive overtime pay if they are em- listed as permitted and from performing room is not otherwise protected by law, the Di- ployed, directly or indirectly, for an egg pro- service, making deliveries of any sort to ho- rector of the Bureau of Human Resources, cessing facility or at such a facility that has tel rooms, or entering the hallways to those may make the determination to release the more than 300,000 laying birds. rooms. information upon the request of the employ- The Commissioner of Labor is to adopt ing agency. rules in consultation with the Maine Human Agriculture. The Bureau of Labor Stan- Rights Commission to implement law provi- dards is to adopt rules for the protection of Employee leasing. Registration of employee sions prohibiting discrimination in pay on the the health, safety, and welfare of agricultural leasing firms is to be performed by the De- basis of gender. The commissioner is to for- workers who occupy housing owned or con- partment of Professional and Financial Regu- ward the final rules to the legislature’s Joint trolled by employers. The rules will apply to lation rather than the Department of Labor. Standing Committee on Labor by March 1, employers who provide housing to more than 1998. five employees, and whose minimum hous- Discharge. The law, establishing sanctions ing habitability standards are not already cov- for an employer’s failure to respond within 15 Family issues. Coverage of the State Fam- ered under the Federal Migrant and Seasonal days of an employee’s written request for the ily Medical Leave law was expanded by re- Agricultural Worker Protection Act. Rules reason he or she was terminated from employ- ducing from 25 to 15 the number of workers adopted are to be identical to those adopted ment, was amended. It now permits an em- required to be employed at a permanent under the Federal law. Provision was made ployee to bring a court action against the em- worksite. for the bureau to gain entry into housing fa- ployer for equitable relief, including an injunc- The Family Medical Leave law was cilities. An employer in violation is subject tion, as the court may consider necessary. The amended to replace references to serious ill- to a civil penalty of from $100 to $1,000 for employer also may be required to reimburse ness with references to serious health condi- each violation with each day that the viola- the employee for the costs of the suit. tions and to add definitions of “health care tion remains uncorrected following notice provider” and “serious health condition.” counted as a separate offense. Other laws. The Director of the Bureau of Health care provider is defined as a doctor of Labor Standards was given au- medicine or osteopathy who is licensed to Equal employment opportuniry. Discrimi- thority for all wage and hour and other re- practice medicine or surgery in the State or nation, in employment, housing, public ac- lated laws that the Bureau is charged with any other person determined by the Secre- commodations, and credit, on the basis of enforcing. tary of Labor to be capable of providing sexual orientation was added to the forms of The act providing that information and health care services. Serious health condition unlawful discrimination prohibited under the reports of the Director of the Bureau of La- is defined as an illness, injury, impairment or State Act. A religious corpo- bor and Industry be confidential was physical or mental condition that involves ration, association, or organization will be amended. It now allows the director to re- inpatient care in a hospital, hospice, or resi- exempt from the ban. lease information and reports to other gov- dential medical care facility or continuing ernment agencies if he or she believes that treatment by a health care provider. Worker privacy. The law granting current the information will serve to protect the pub- or former employees the right to review and lic or assist in the enforcement of local, State, Child labor. The Child Labor Law was copy their personnel files, and establishing and Federal laws. The director may also re- amended to allow a minor, under age 18 who penalties for an employer’s refusal to pro- lease information and reports to the public is enrolled in school, to work up to 50 hours vide this opportunity, was amended to add pertaining to final bureau action taken under during any week that the approved school procedures for the current or former employee the laws it administers. calendar is less than 3 days or during the first to bring court action to collect penalties due The law establishing labor standards for or last week of the school calendar, regard- and court costs. persons required to work as a condition of less of how many days school is in session The law regarding the personal informa- receiving public assistance provides that: for the week. tion of State employees was amended to participants in the program cannot be as- An exemption to the prohibited hazard- specify that any records that contain personal signed to a position that was previously filled ous occupations section of the Child Labor information are confidential and not open to by a regular employee who has been laid off, Law, that had allowed minors under age 16 public inspection. These records would in- to a position created by terminating an em- to work in retail establishments where any clude information pertaining to: an em- ployee; to an established position that is va- frozen dairy product or related food product ployee’s race, color, religion, sex, national cant; to a worksite where there is a labor dis- is manufactured on the premises, was origin, ancestry, age, physical disability, men- pute, including a strike or lockout; or to a amended to limit this exemption to 15-year- tal disability and marital status; Social Secu- work site in a manner that violates an exist- olds. Minors 15 years of age who were pre- rity number; home telephone number and ing contract or agree- viously allowed to work in kitchens, dining home address; and personal employment ment or infringes on the promotional oppor- rooms, lobbies and offices of public lodging choices pertaining to elected payroll deduc- tunities for any employees.

Monthly Labor Review Januarv 1998 11 State Labor Laws

Maryland Other laws. A county, Baltimore City, mu- ing wages and fringe benefits on State con- nicipal corporation, or regional agency may struction projects was preempted by the Fed- Wages. The State minimum wage law adopts not require an employee to reside within the eral Employee Retirement Income Security the Federal minimum wage rate by reference. State as a condition of employment. Discrimi- Act of 1974 (ERISA). Therefore, the State rate rose from $4.75 per nation in employment decisions between State hour to $5.15 on September 1, 1997. residents and non-residents is prohibited. Child labor. The Youth Employment Stan- Effective September 1, 1997, the amount dards Act was amended to permit 16- and of tip credit, that an employer may include as Massachusetts 17-year-olds employed in farming operations part of the minimum wage of tipped employ- in the production of seed (detassaling, hand- ees, was changed from 50 percent of the mini- Wages. As the result of prior legislation, the pollination, roguing, hoeing) to work 62 mum wage to an amount not to exceed $2.77 State minimum wage rate rose from $4.75 hours a week and 11 hours a day for up to 6 per hour. per hour to $5.25 on January 1,1997. weeks during a school vacation period with Effective January 1,1999, several changes parental consent (48 hours per week for the will be made to the State prevailing wage law. Michigan remaining weeks). Minors who are not en- Among these, overtime on public work con- rolled in school may work these hours any tracts will be payable after 10 hours rather Wages. New legislation was enacted in- time of the year. The prior limits were 10 than 8 hours a day. Requirements for over- creasing the State minimum wage rate from hours a day and 48 hours a week. Minors aged time pay after 40 hours a week and on Sun- $3.35 per hour to $4.75 on May 1,1997 and 16 and 17 employed in agricultural process- days and legal holidays were codified. The to $5.15 on September 1, 1997. This mini- ing (cleaning, sorting, or packaging of fruits period of debarment for contractors and mum wage is payable to employees 16 years and vegetables), who were previously autho- subcontractors who persistently and willfully of age and over. The minimum hourly wage rized to work these longer hours, may now violate the law will be increased from 1 to 2 rate of tipped employees was raised from do so for 6 weeks rather than 4 weeks during years. Maximum liquidated damages for un- $2.52 to $2.65. An employer may pay a new school vacation. derpayments will be doubled from $10 to employee who is under age 20 a training wage $20, and a $50 fine will be established for of $4.25 an hour for the first 90 days of that Equal employment opportunity. Governor failure to post wage rates. Another provision employee’s employment. An employer may Engler issued an Order providing requires the Governor to include funding in not displace an employee in order to hire an for the establishment of the Michigan Com- the annual budget for each fiscal year begin- individual at the training wage. In lieu of mission on Genetic Privacy and Progress. ‘The ning with Fiscal Year 1999 to provide for at monetary overtime compensation, covered Commission will be in the Department of least five additional Wage and Hour Investi- employees may now receive compensatory Community Health. It is to recommend mode1 gator positions. time off at a rate of not less than I- 112 hours State statutory and administrative policies for each hour of employment for which over- which protect the privacy of genetic infor- Employee testing. The law relatmg to job time pay would otherwise be required. mation, and prevent discrimination because related drug testing was amended to autho- Among several conditions for the use of com- of such information in the areas of employ- rize the use of hair specimen testing for pre- pensatory time, 10 days of paid leave must ment, health care, insurance, and government employment drug testing. Employers using be provided before compensatory time can recordkeeping. A final report is to be made hair specimens for pre-employment testing be taken, its use must be requested in writing to the Governor and the legislature by No- may not use a specimen that is longer than l- by the employee, employers must allow use vember 15, 1998. % inches measured from the human body and of earned leave, and an employee may not may not use the specimen for any purpose accrue more than a total of 240 hours of such Striker replacements. A resolution was other than testing for controlled dangerous leave. The Department of Consumer and In- adopted asking the United States Congress substances. dustry Services may now investigate an es- to enact legislation to prohibit the hiring of tablishment and file civil action against it to replacement workers as an alternative to ne- Employee leasing. The Maryland Health In- collect minimum wages for all employees gotiations and settlements of labor disputes. surance Reform Act will now be applicable who do not receive the appropriate rate of to health benefit plans issued through a pro- pay rather than only for an employee who Minnesota fessional employer organization, co-employer, files a complaint. or any other organization that engages in em- The State Department of Consumer and Wages. A new law increased the State mini- ployee leasing. In addition, the Health Care Industry Services resumed enforcement of mum wage rate for employers of large estab- Access and Cost Commission, in conjunction the State prevailing wage law following a lishments from $4.25 to $5.15 per hour, be- with the Maryland Insurance Administration, June 5, 1997 opinion by the U.S. 6th Circuit ginning September 1,1997. The rate for em- is to conduct a study of ways to reduce ad- Court of Appeals that reversed a November ployers of small establishments increased ministrative overhead associated with health 1994decision which had declared the State’s from $4.00 to $4.90 per hour, beginning Janu- insurance for small firms that lease employ- prevailing wage law “invalid and unenforce- ary 1, 1998. The definition of “large em- ees. The Commission is to report the results able.” ployer” was amended to now apply to those of the study to the legislature by November The 1994 decision had ruled that the enterprises whose annual gross volume of I, 1997. State’s requirement for payment of prevail- sales made or business done is not less than

12 Monthly Labor Review January 1998 $500,000 (previously $362,500). During the Privare employment agencies. The section Therefore, the State rate rose from $4.75 per first 90 consecutive days of employment, an of the employment agency regulatory law re- hour to $5.15 on September 1, 1997. employer may pay new employees under age quiring that surety bonds accompany license 20 a wage of $4.25 an hour. An employer applications and required annual reports was Child labor. The child labor law was may not displace any employee, including a amended to provide that the surety bond for amended to permit minors I2 years of age partial displacement through a reduction in a search firm will be required only for the and older to operate lawn and garden machin- hours, wages, or employment benefits, in first 5 years of registration. ery in domestic service at or around a private order to hire an employee at the subminimum residence provided that there is an agreement training wage. A tip credit is not permitted. Other laws. Employers are to grant a leave for the performance of the work between the When a migrant worker quits or resigns, of absence without pay to employees for time occupant of the private residence and the the wages or commissions earned and unpaid spent rendering service as a member of the civil child, or the child’s parent or legal guardian, at the time of the resignation will become due air patrol at the request of the State or any of and not with some other person, firm, or and payable within 5 days of the end of its political subdivisions. The leave is not to corporation. employment. unduly disrupt the operations of the employer. Retail establishments, whose primary In addition to agricultural inspectors, child business is the sale of alcoholic beverages, Equal employment opportunity. The law protection workers, public health nurses, and who employ persons between 18 and 2 I years was amended that makes it an unfair discrimi- probation or parole officers, it is now unlaw- old to stock or sell intoxicating liquor, must natory practice for any employer, labor orga- ful to assault an occupational safety and employ and have on the premises during nization, employment agency, or other orga- health investigator while engaged in the per- working hours an employee 2 I years of age nization to intentionally engage in any re- formance of his or her duty. or older. prisal against any person, who has: opposed a prohibited discriminatory practice, filed a Mississippi Employee testing. An employer of a per- charge of discrimination, or participated in son licensed to operate a school bus must any investigation or proceeding, or against Employee testing. Provision was made to notify the Department of Revenue within IO any person because of his or her association create drug-free workplace programs for em- days of discovering that the person has failed with someone who is disabled or of a differ- ployees in the State. These programs are to to pass any drug, alcohol, or chemical test ent race, color, creed, religion, sexual orien- include a written policy statement given to administered pursuant to any Federal or State tation, or national origin. The law now also employees and applicants informing them of law or regulation regarding the operation of applies to individuals who participate in the the employer’s policy on substance abuse, a school bus. The Director of the Department discrimination as perpetrators. notifying them that the sale, possession, or of Revenue will confirm that the test was use of alcohol or other drugs is prohibited in failed and then suspend the school bus per- Employee testing. The form given an em- the workplace. Employers also are to provide mit of such person for 1 year from the date ployee or job applicant by an employer be- information on how employees can obtain the determination is made. fore requesting a drug or alcohol test will no treatment, a general statement concerning longer include a section where the employee confidentiality, identification of types of test- Montana or applicant can indicate any over-the-counter ing that may be required, and requirements or prescription medication that he or she is for supervisory and employee training pro- Wages. The State minimum wage law taking or has recently taken, or any other in- grams. Employers with acceptable drug-free adopts the Federal minimum wage rate by formation relevant to the reliability of, or workplace programs will qualify for a 5-per- reference through administrative action. The explanation for, a positive test result. How- cent discount on worker’s compensation pre- State rate rose from $4.75 per hour to $5. I5 ever, if an employee or job applicant tests miums if offered under the employer’s work- on September 1, 1997 as the result of action positive for drug use, the employee must be ers’ compensation insurance policy. taken in 1996. given written notice of the right to explain The Department of Corrections is to de- Salespersons, parts persons, and mechan- the positive test. velop and implement a drug-testing program ics employed by a business primarily engaged for its employees by July I, 1997. A written in selling replacement parts to wholesalers Workerprivacy. Employers who provide in- policy for alcohol and drug testing of em- or ultimate purchasers, were added to the list formation in conjunction with background ployees is to be developed to deter the use of of those excluded from the overtime com- investigations of applicants for employment alcohol and drugs at its facilities and to en- pensation provisions of the Minimum Wage with a law enforcement agency are immune sure an alcohol and drug-free environment and Overtime Law. from civil liability if the information is fur- at correctional facilities. Participation by The Minimum Wage and Overtime law nished without fraud or malice. employees is mandatory and the tests may be was amended to exclude from coverage those The law requiring employers to allow conducted randomly. persons placed as participants in authorized employees to review their personnel files was public assistance programs to develop em- amended to provide that when an employee Missouri ployment skills, and those persons serving is separated from employment and he or she as licensed foster parents. requests a copy of their personnel record, it Wages. The State minimum wage law adopts The law requiring payment of prevail- is to be provided at no cost. the Federal minimum wage rate by reference. ing wage rates on public construction con-

Monthly Labor Review January 1998 13 State Labor Laws

tracts in excess of $25,000 was amended to wages will be due and payable at the end of vate and public sectors in the process of iden- apply also to public works service contiacts the B-day period. tifying and analyzing options. over that amount. The law will apply to con- tracts for maintenance of publicly owned Employee testing. A Workforce Drug and Nebraska buildings and facilities, including highways, Alcohol Testing Act, applicable to both the roads and alleys; custodial or security ser- public and private sector, was adopted replac- Wages. New legislation increased the State vices; grounds maintenance; the operation ing the Private Workforce Drug and Alcohol minimum wage rate from $4.25 per hour to of public drinking water supply, waste col- Testing Act. Among other changes, a new $5.15 on September 1.1997. Employers may lection, and waste disposal systems; law definition of “employee” restricts drug or al- pay new employees under age 20 a training enforcement; fire protection; public school cohol testing of existing employees to those wage of $4.25 per hour for 90 days from the transportation; nursing, nurses aid, and in hazardous work environments, security po- date the new employee was hired. The train- medical laboratory technician services; ma- sitions, positions affecting public safety, or ing rate will not apply to seasonal or mi- terial and mailhandling; food service and fiduciary positions, rather than the previous grant workers. cooking; motor vehicle and construction testing of any employee where the employer equipment repair and servicing; and appli- had reason to believe his or her faculties were Nevada ance and office repair and servicing. The impaired on the job as a result of alcohol provision for use of a weighted average rate, consumption or illegal drug use. New amend- Wages. The State minimum wage law adopts based on all hours of work of a similar char- ments eliminated the reference to blood tests, the Federal minimum wage rate by reference acter performed in a district, for determin- restricting testing to urine Sam-ples and through administrative action. The State rate ing prevailing rates was amended to pro- breath tests. Employers who are eligible and rose from $4.75 per hour to $5.15 on Sep- vide that if the survey produces insufficient want to test employees must give them 60 tember 1, 1997 as the result of administra- data, the rate may be established by the days’ notice of the intent to test and the ex-. tive action taken in 1996. Commissioner of Labor and Industry using tent of the testing; must have a program for The labor commissioner is to notify the other information or methods established by regularly educating or providing employees State contractors’ board after three substanti- rule. The rules must establish a process for with information on health and safety risks ated claims for wages have been filed against determining if there is insufficient data gen- associated with the use of drugs and alcohol; a contractor within a 2-year period. The noti- erated, and must identify what constitutes and must train supervisors prior to testing fication must include a copy of the final writ- insufficient data. The alternative methods employees suspected of being impaired on ten decision of the labor commissioner with of determining prevailing wage rates must the job. regard to each claim. Upon receiving this no- provide for review and incorporation of data tification, the board is to require the contrac- from work of a similar character conducted Inmate labor. The Department of Admin- tor to file a bond or establish a cash deposit in as near as possible to the original district. istration may exempt inmates, who provide an amount that it determines. The wage payment law was amended to labor on authorized construction projects, A contractor engaged on a public work provide that all employees separated from from the labor and wage requirements of the project will now be liable for a civil penalty employment are to receive wages due on the State public construction prevailing wage law. for failure to report each worker employed next regular payday or 15 days from the date Payment for work may be based on knowl- on the public work to the labor commissioner of separation, whichever occurs first. This edge and skill; attitude toward authority; and the public body awarding the contract. requirement existed previously for public physical effort; responsibility for equipment Civil penalties were already provided for fail- sector employees, but those in the private and materials; and regard for the safety of ure to pay wages due. sector were to be paid within 3 days of sepa- others. The maximum rate of pay must be de- Any public body that advertises for bids ration. The requirement that employees sepa- termined by the appropriation established for for a public work project is to request an iden- rated for cause be paid immediately upon each program, except that an inmate em- tifying number for the project, from the la- separation was amended to allow payment at ployed in a Federally certified prison indus- bor commissioner, and include that number the next regular payday or within 15 days in the advertisement for bids. tries program must be paid at a rate not less where the employer has a written personnel than the rate paid for similar work in the lo- policy that extends the time for payment of Family issues. The law providing for up to cality where the inmate performs the work. final wages. Also amended were provisions 12 weeks of unpaid leave upon request for pertaining to employees separated because of State employees, who are the parents of a an allegation of theft. In such cases, an em- Other laws. A resolution was adopted re- child under 6 months old or who have re- ployer no longer needs to obtain a court or- questing the Department of Labor and Indus- cently adopted a child, will now only be ap- der to withhold final payment, but may now try to explore, investigate, and report to the plicable if the Federal Family Medical Leave do so if the employee agrees in writing to the legislature on different approaches to an in- Act or a subsequent Federal law ceases to withholding or the employer files a report of tegrated dispute settlement process for em- provide for a parental leave of absence of at the theft with the local law enforcement ployment-related issues. The Department is least 12 weeks. agency within 7 days of the separation. If to invite the participation and involvement court charges are not filed against the em- of interested, knowledgeable persons, includ- Child labor. A resolution was adopted urg- ployee within 1.5 days of filing the report, ing employers and employees from the pri- ing businesses in Nevada not to sell prod-

14 Monthly Labor Review January 1998 ucts made through the labor of children. Also, rate increased from $4.75 per hour to $5.15 cil is to make a study of the undocumented the U.S. Congress was asked to address the on September 1, 1997. alien population in the State. It would in- problem of child labor, both in the United The Wage Payment law relating to method clude, but is not limited to an estimate of States and abroad, and to support the adop- of payment was amended to clarify that pay- whether the number of undocumented aliens tion of the International Labor Organization ment by electronic fund transfer is to be at is increasing, decreasing or relatively stable. convention on the elimination of child labor. no cost to the employee, and that payment The study would determine the source coun- by direct deposit requires the written autho- tries of the aliens and the paths of entry into Worker privacy. An employer who, at the rization of the employee. A new section pro- and exit from the State. It would determine request of an employee, discloses informa- hibits an employer and employee from en- factors that are considered attractors for un- tion to a prospective employer regarding the tering into an agreement that work may be documented aliens and factors that maintain ability of the employee to perform his or her performed for less than the applicable mini- the presence of these aliens once in the State. job now will be immune from civil liability mum wage. If an employee elects to file a The council also is to determine the impact for the disclosure and its consequences. Spe- wage claim, the claim must be filed with the of the presence of undocumented aliens on cifically, employers are immune when dis- department no later than 18 months from the the employment opportunities of persons closing information on the diligence, skill or date wages were due. legally in the State, and to recommend to reliability with which the employee carried the Department and the Legislature reme- out job duties or an illegal or wrongful act Child labor. The section of the Youth Em dial action or legislation or both with respect committed by the employee. However, im- ployment Law relating to employment cer- to this impact. munity is not granted when the employer tificates was amended to specify that an em- ployer is to obtain certificates within 3 busi- acted with malice, recklessly or intentionally New York disclosed inaccurate or misleading informa- ness days of the first day of the minor’s em- tion, or disclosed information in violation of ployment. Wages. An Unpaid Wages Protection Act a State or Federal law or in violation of an A youth 17 years of age who has gradu- was enacted. Among its provisions, any em- agreement with the employee. ated from high school or has obtained a gen- ployee, or union representative, may file a The law providing for employee access eral equivalency diploma will be exempt from complaint with the labor commissioner, re- to personnel records was amended to autho- the youth employment law. A legislative com- garding a wage payment, minimum wage, or rize an employee or person referred to an mittee was established to study the youth agricultural minimum wage violation. Each employer by a labor organization to submit employment law and to report its findings and employee who files a complaint must be given written material for inclusion in his or her any recommendations for proposed legisla- a written description of the anticipated pro- record of employment in direct response to tion to the legislature by November 1, 1997. cessing of the complaint, including investi- any written entry in the records regarding the gation, case conference, potential civil and Employers employee. Any written explanation must be Equal employment opportunity. criminal penalties, and collection procedures; reasonable in length, in a format prescribed are barred from refusing to hire, discharging, is to be notified in writing in advance of any by the employer, and maintained by the em- or otherwise discriminating against an indi- case conference and given the opportunity to ployer or labor organization in the records of vidual in compensation or in terms, condi- attend; and is to be notified in writing of any employment. Employers and labor organiza- tions, or privileges of employment because award and collection of back wages and civil tions are prohibited from maintaining a se- of that person’s sexual orientation. Addition- penalties, and any intent to seek criminal pen- cret record of employment regarding an em- ally, labor organizations may not exclude an alties. An employer’s failure to keep adequate ployee or person referred. individual from full membership rights, ex- records will not be a to filing a complaint pel the member or otherwise discriminate by an employee. The provision requiring ac- because of sexual orientation, and employ- Other laws. The Department of Employ- tions to recover wages to be begun within 6 ment agencies may not discriminate on the ment, Training and Rehabilitation and the De- years was amended to specify that all employ- basis of sexual orientation in any advertise- partment of Human Resources are to enter ees have the right to recover full wages and ments or applications for employment. into an agreement to provide job placement benefits accrued during the 6 years before services to employers and recipients of tem- commencing such action, whether the action New Jersey porary assistance for needy families. is instituted by the employee or the commis- A requirement that the Division of Indus- Wages. The wage payment law was sioner. An employer who fails to pay wages trial Relations of the Department of Business amended to permit employees to authorize will now be guilty of a felony for a second and Industry have a seal to authenticate its employers to withhold payments from their offense (a first offense remains a misde- proceedings and orders was repealed. wages for employer-sponsored group or in- meanor). Also, an employer previously found dividual insurance or annuity programs. in violation, or whose violation is willful or egregious will be liable for wages due plus New Hampshire Alien workers. A Council on Undocu- an additional sum, as a civil penalty, of double Wages. The State minimum wage rate is re- mented Aliens was established within the the total amount found to be due. placed with the Federal Fair Labor Standards Department of Labor consisting of 14 pub- Act rate if it becomes higher than the State lic members and the commissioner or the Child labor. The law relating to the employ- minimum. Because of this provision, the State commissioner’s designee as chair. The coun- ment of minors was amended to allow a minor

Monthly Labor Review January 1998 15 State Labor Laws

12 or 13 years of age to be employed as a bridge Equal employment opportunity. It was tip credit allowance was retained, requiring caddie at a bridge tournament, when not re- made unlawful for any person, firm, or pub- a $3.45 per hour minimum cash wage pay- quired to be in school. An employment certifi- lic agency in the State to deny employment ment to tipped employees. The State does not cate will not be required for this work. to any person or to discharge any person from allow a training wage for employees under employment because the person has re- 20 years of age. Equal employment opportunity. It was quested genetic testing or counseling ser- The authority of the labor commissioner made an unlawful discriminatory practice for vices, or because of genetic information ob- to issue special licenses to employ certain an employer, licensing agency, employment tained concerning the person or a member of disabled workers at less than the minimum agency, or labor organization to refuse to pro- his or her family. wage was expanded to apply to those partici- vide reasonable accommodations to the pating in vocational education or related pro- known disabilities of an employee, prospec- Worker privacy. An employer who dis- grams and to community rehabilitation pro- tive employee, or participant in a job train- closes information about a current or former grams for the disabled that represent and ing program. Reasonable accommodation to employee’s job history or job performance place these individuals for the purpose’ of a disability includes provision of an acces- to a prospective employer upon request of training, learning, or employment. sible worksite, acquisition or modification of the prospective employer or the current or Summaries of wage orders, rather than the equipment, support services for persons with former employee is immune from civil liabil- actual language, are now to be mailed to ev- impaired hearing or vision, job restructuring, ity for the disclosure or any consequences of ery employer affected and posted by them. and modified work schedules. However, such the disclosure unless the information dis- Provisions relating to investigation and accommodations may not impose an undue closed was knowingly false. enforcement of wage claims by the labor com- hardship on the operation of the business, The Public Hospital Personnel Act of missioner was amended to allow the com- program or enterprise. 1997 includes sections governing the privacy missioner to consider any offsets, deductions, of the personnel records of public hospital or counterclaims asserted by an employer during the investigation. Other laws. The provision establishing a employees. Matters of public record are an public work enforcement fund was amended employee’s name, age, date of original em- to specify that all moneys transferred to and ployment, current position title, current sal- Hours. A law was enacted to provide for ary, date of the most recent increase or de- accumulated in the fund can only be used exemptions from Federal hours of service for enforcement of labor laws by the labor crease in salary, date of the most recent provisions for intrastate commercial drivers department. change in position classification, the office (defined as drivers who will be operating a to which the employee is currently assigned, The labor commissioner is to assist the commercial motor vehicle within the State Office for the Prevention of Domestic Vio- and the educational history, qualifications and for a period of 7 consecutive days). Intrast- certifications of licensed medical providers. lence in adopting and promoting a model ate drivers not subject to Federal hours of All other information contained in an domestic violence employee awareness and service limitations are: drivers of authorized assistance policy. This model plan is to in- employee’s personnel file is confidential and emergency vehicles; drivers who operate clude the establishment of a definite corpo- subject to inspection only in certain speci- motor vehicles with a gross vehicle weight fied limited instances. rate policy statement recognizing domestic rating of no more than 26 thousand pounds violence as a workplace issue as well as pro- and not transporting hazardous materials; and Other laws. A new section was enacted pro- moting the need to maintain job security for tow truck drivers, operating at the request of hibiting discrimination against persons who those employees currently involved in domes- a law enforcement officer. Other intrastate serve in the State National Guard. Any mem- tic violence disputes. drivers may not drive more than 12 hours ber of the State National Guard who performs following 8 consecutive hours off duty, or or has an obligation to perform Guard ser- for any period after having been on duty North Carolina vice is not to be denied initial employment, longer than 15 hours. They are also gener- reemployment, retention in employment, pro- Wages. New legislation increased the State ally prohibited from driving if they have been motion, or any benefit of employment by an minimum wage rate from $4.25 per hour to on duty for 70 hours within 7 consecutive employer because of his or her National $4.75 on August 1, 1997, and to $5.15 on days. Hours of service limitations do not ap- Guard membership or service obligation. An September 1, 1997 by adopting the Federal ply to an intrastate driver when transporting employer is not obligated to pay the wages Fair Labor Standards Act rate. The Federal property or passengers during a declared of a member of the State National Guard dur- maximum tip credit against the minimum emergency. ing the member’s period of active service wage was also adopted ($2.62 on August 1, 1997 and $3.02 on September 1, 1997) re- Child labor. Employment certificates un- placing a 50-percent provision. Persons em- North Dakota der the child labor law will no longer include ployed as computer systems analysts, com- information on the child’s place of birth, the puter programmers and software engineers Wages. The State minimum wage rate was color of his or her hair and eyes, height and were added to the list of those exempt from raised administratively from $4.75 per hour weight, and any distinguishing facial marks. minimum wage, overtime and record keep- to $5.15 to coincide with the Federal mini- Certificate information will now be limited ing requirements. mum wage increase. The State’s 33-percent to the date of birth, a description of job du-

16 Monthly Labor Review January 1998 ties and responsibilities, and signatures of the and/or up to 2 years of back pay. The minimum wage law was amended to employer and parent or guardian. permit the Commissioner of the Bureau of Students 14 and 15 years of age who are Other laws. pertaining to informa- Labor and Industries to assess a civil penalty participating in approved school-to-work pro- tion that must be furnished to the Department of up to $1,000 for willful violations of mini- grams will now be subject to the employment of Labor were amended to clarify that the in- mum wage law provisions and rules adopted certificate and maximum hours restrictions formation provided relating to investigations relating to subminimum wages, recordkeeping, of the child labor law. Provisions that had and determinations of wage claims and dis- posting, discrimination prohibitions, and mini- exempted these students were eliminated. crimination charges along with other infor- mum employment conditions (including rest mation collected from employers is exempt and meal period provisions). No civil penalty Equal employment opportunity. A require- from the open record laws of the State. may be assessed for violations of rules per- ment, that employers who are subject to the taining to the payment of overtime wages. equal pay law keep a copy of the law posted Amounts collected as penalties may first be Ohio in a conspicuous place at the workplace, was applied toward Bureau of Labor and Indus- repealed. Wages. The State public works prevailing ties costs, with the remainder, if any, used wage law will now exempt public improve- by the Division of State Lands for the ben- Worker privacy. An employer who dis- ments and construction undertaken by pub- efit of the State Common School Fund. closes information about a current or former lic school districts and educational service Provisions relating to hours of labor and employee’s job history or job performance centers. For a 5-year period, the Legislative overtime on public contracts were amended to a prospective employer is presumed to be Budget Office of the Legislative Service to limit work on these contracts (including acting in good faith, and unless lack of good Commission is to monitor and study the ef- prevailing wage contracts) to 10 hours on any faith is shown, is immune from civil liability fects of the prevailing wage exemption. It is one day. Overtime provisions were revised, for the disclosure or its consequences. The to determine the amount of money saved by allowing contractors who have adopted work presumption of good faith may be rebutted school districts and educational service cen- schedules of 4 consecutive days (Monday by a showing that the information disclosed ters due to the exemption, the impact of the through Thursday or Tuesday through Fri- was knowingly false, was deliberately mis- exemption on the quality of public school day) to pay daily overtime after 10 hours a leading, or was rendered with malicious pur- building construction in the State, and the day are worked rather than after 8 hours in a pose, or that the information was disclosed impact of the exemption on the wages of con- day. Contractors who have not adopted 4-day in violation of a nondisclosure agreement, or struction employees working on the construc- work schedules must continue to pay over- was otherwise confidential according to ap- tion of public school buildings in the State. time for hours worked in excess of 8 a day. plicable law. The requirement to pay overtime for work performed on Saturdays, Sundays, and other Oklahoma Private employment agencies. The section legal holidays was retained. Employers must of the private employment agency law pro- give written notice to employees who work Wages. The State minimum wage law adopts viding for a refund to employees if an em- on public contracts of the number of hours the Federal minimum wage rate by reference. ployment position terminates or the employee per day and days per week that they may be Therefore, the State rate rose from $4.75 per is fired or laid off before the end of 90 calen- required to work. Contractors who willfully hour to 85.15 on September 1, 1997. dar days will not apply in two situations. falsify payroll records to avoid the payment Namely, no refund is provided in cases in of overtime required by law are liable to the which the employee has a signed contract Child labor. The law prohibiting minors employees affected in the amount of their accepting an employment position, but he or from being in establishments where alcoholic unpaid overtime wages and an additional she does not start work or the employee is beverages are sold was amended. It now al- amount equal to twice the unpaid overtime terminated for gross misconduct. lows the employment of musical bands who wages as liquidated damages. have musicians under age 21 if each such mu- The prevailing wage law was amended to Whistleblower. The law prohibitmg em- sician is either accompanied by a parent or require the labor commissioner to rely on an- ployer retaliation against an employee who legal guardian or possesses a written, nota- nual independent wage surveys in determin- reports a violation of law to a government rized affidavit from the parent or legal guard- ing prevailing wage rates. The commissioner body or law enforcement official was ian giving the underage musician permission may consider additional information such as amended to modify the role of the depart- to perform in designated bar or lounge areas. collective bargaining agreements, other inde- ment of labor, in the event of a violation, from pendent wage surveys and prevailing wage one of investigating complaints and assuring Oregon rates determined by appropriate Federal agen- compliance to one of conciliation. An em- cies or agencies of adjoining States if it ap- ployee asserting a violation may now bring a Wages. The State minimum wage rate rose pears that the data derived from the survey civil action for injunctive relief or actual dam- from $4.75 per hour to $5.50 on January 1, alone are insufficient to establish rates. ages, or both, within 90 days of the alleged 1997 and to $6.00 on January 1, 1998 as the The State prevailing wage law also was violation or after exhausting any process pro- result of passage of Ballot Measure 36 in the amended to make public agencies liable for vided by collective bargaining or employment November 1996 general election. The rate unpaid prevailing wages only when the contract. The court may order reinstatement will increase to $6.50 on January 1, 1999. agency fails to include in any contract docu-

Monthly Labor Review January 1998 17 State Labor Laws

ments (the advertisement for bids, request for The Department of Consumer and BUSI- performance to a prospective employer upon bids, contract specifications, accepted bid, or ness Services rather than the Bureau of La- request of the prospective employer or of the elsewhere in the contract documents), a state- bor and Industries now is responsible for former employee is presumed to be acting in ment requiring payment of at least the pre- enforcing building, health, and safety stan- good faith and, unless lack of good faith is vailing rates of wage. In addition, the liabil- dards at farmworker camps shown, is immune from civil liability for the ity of the public agency was modified to be disclosure or its consequences. The pre- joint and several with any contractor or sub- Equal employment opportunity. The law sumption of good faith is rebutted by show- contractor that had notice to comply with the prohibiting discrimination in employment by ing that the information disclosed by the law, rather than exclusive liability. reason of disability was amended to bring it employer was knowingly false or deliber- The law requiring the payment of earned into conformance with the Federal Ameri- ately misleading, was given with malicious wages and benefits to employees upon em- cans With Disabilities Act. The law prohib- purpose or violated any civil right of the ployment termination was amended. It now its employers from discriminating against an former employee. An action for defamation provides that it will not apply to payment for employee because he or she associates with may not be brought against an employer by earned, but unused, holiday, sick, vacation, an individual who has a physical or mental a terminated employee based on a claim that or other leave benefits when a termination of impairment. It prohibits employers from ask- in seeking subsequent employment the employment results from the sale of a busi- ing applicants to submit to a pre-employ- former employee will be forced to reveal ness and the purchaser employs or continues ment medical examination and making in- the reasons given by the employer for the the employment of an individual employed quiries into the nature and severity of the termination. at the business. To qualify, on the first day of applicant’s disability. The law defines what The law on disclosure of public records an individual’s continued employment, the constitutes reasonable accommodation for was amended. The records, which are ex- purchaser of the business must credit the in- purposes of the requirement that employers empt from disclosure, are to include the ad- dividual with all such earned, but unused make reasonable accommodation to the dresses and phone numbers of public body accrued leave, and the leave, when used, must known physical or mental limitations of an employees, volunteers, , and district be paid at a rate not less than the rate at which otherwise qualified disabled person who is attorneys that are contained in their person- the leave was earned. a job applicant or employee. Reasonable ac- nel records. commodation is to include: making exist- Child labor. The State Wage and Hour ing facilities used by employees readily ac- Private employment agencies. Licensing Commission is to issue special permits for cessible to and usable by disabled persons; and licensing-related requirements for all the employment of children under 16 years job restructuring, part-time, or modified private employment agencies were repealed. of age in agriculture for longer than 10 hours work schedules; acquisition or modification The Bureau of Labor and Industries retains for any one day when the Commissioner de- of equipment or devices; appropriate adjust- regulation of and enforcement authority over termines that such hours of work will not ment or modification of examinations, train- those private employment agencies that be detrimental to the health and safety of ing materials or policies; and the provision charge fees to applicants for employment the children employed. Otherwise, no child of qualified readers or interpreters. Such (employer-fee-paid only agencies are now under age 16 is to be employed for longer actions are not to impose an undue hardship exempt from all ). Limited liabil- than 10 hours a day, nor more than 6 days a on the operation of the employer’s business. ity corporations were added to the defini- week. The Oregon Department of Administra- tion of employment agency. In addition to The authority of the Commissioner of the tive Services, in conjunction with the Or- any other penalty, the Commissioner of the Bureau of Labor and Industries to impose egon Disabilities Commission, is to conduct Bureau of Labor and Industries may assess civil penalties of up to $1,000 for each vio- a study to assess the number of persons with a civil penalty of up to $2,000 against any lation of the child labor law on persons not disabilities in the State work force, make rec- person, firm, organization, limited liability regulated under the Federal Fair Labor Stan- ommendations to remedy any underrepre- company or corporation that violates the law. dards Act was amended to apply also to those sentation, and report those recommendations Professional placement services, profes- regulated by the act. to the legislature by February 14, 1999. The sional employment organizations and tem- The Commissioner may not impose a study is to include an assessment of the bar- porary employment agencies will be consid- civil penalty when the person has already riers to increasing employment of persons ered employers for purposes of participation paid a civil penalty to the U.S. Department with disabilities from the perspective of both in the JOBSPlus Program that provides em- of Labor for violation of the child labor pro- the applicant and the State government em- ployment opportunities for welfare recipi- visions of the Fair Labor Standards Act if ployer, and recommendations for change in ents. Agreements involving these agencies the civil penalty involves the same factual the current personnel system to increase the will require a three-party agreement between circumstances. Any such penalty previously employment of persons with disabilities by the professional placement service, profes- imposed will be refunded. State government. Various provisions relat- sional employment organization, or tempo- ing to the Vocational Rehabilitation Divi- rary employment agency; the organization Agriculture. The labor commissioner was sion and the certification of severely handi- where the participant has been placed to per- given authority to issue subpoenas, admin- capped persons were repealed. form services; and the State of Oregon. ister oaths, obtain evidence and take testi- mony in enforcing the farm labor contractor Worker privacy. An employer who discloses Other laws. A law was enacted declaring and farmworker camp laws. information about a former employee’s job that it is State policy to encourage State

18 Monthly Labor Review January 1998 agencies to allow employees to telecommute 1996 to increase the amount of severance Employee testing. The law regulating urine, when there are opportunities for improved pay to which a worker fired without just blood, or other bodily fluid or tissue testing, employee performance, reduced commuting cause is entitled. Payments are now to be 1 as a condition of continued employment, miles or agency savings. Each State agency month’s salary for a worker who is fired specifies that employees testing positive are is to adopt a written policy defining specific within the first 5 years of employment; 2 not to be terminated, but are instead to be criteria and procedures for telecommut- month’s salary for a worker who has at least 5 referred to a substance abuse professional. ing. Biennial reports are to be made on the years, but fewer than 15 years of employment; This section was amended to provide that status and effectiveness of telecommuting and 3 month’s salary after 15 years of employ- additional testing may be required by the efforts. ment, plus an additional indemnity equivalent employer in accordance with a referral, and to 1 week for each year of service. that an employee whose testing indicates any Pennsylvania continued use of controlled substances may Rhode Island be terminated. Other changes provide that Wages. The State minimum wage law adopts authorized pre-employment testing of pro- the Federal minimum wage rate by reference. Wages. The State minimum wage rate in- spective employees may include testing of Therefore, the State rate rose from $4.75 per creased from $4.75 per hour to $5.15 on Jan- other bodily fluids or tissue in addition to hour to $5.15 on September 1, 1997. uary 1, 1997 as the result of prior legislation. blood and urine as before, and specify that The minimum wage and overtime law all positive test results are to be confirmed was amended to exempt agricultural employ- Equal employment opportunity. The Office by a Federally certified laboratory. ees from overtime pay requirements. for the Deaf and Hearing Impaired in the Department of Labor and Industry was re- Private employment agencies. Temporary Child labor. A resolution was adopted cre- named the Office for the Deaf and Hard of employment agencies will now be required ating a special House Commission to study Hearing. In addition, the Advisory Council to post a bond in the amount of $10,000 with alternatives for students leaving school before for the Deaf and Hearing Impaired was re- surety to cover payroll and other taxes. Those age 17. The Commission is to report its find- named the Advisory Council for the Deaf agencies that have been certified by the Di- ings and recommendations to the House of and Hard of Hearing and the sunset date for vision of Taxation for at least 2 years will be Representatives by March 25, 1998. the council was eliminated. exempt from the bonding requirement. A tem- Equal employment opportunity. The ban porary employment service is defined as an Preference. On August 1, the U.S. Court on age discrimination in the Fair Employ- organization that hires its own employees and of Appeals for the Third Circuit ruled un- ment Practices law will now apply to all in- assigns them to clients to support or supple- constitutional a State law requiring contrac- dividuals over 40 years of age. An upper ment the client’s work force in work situa- tors on State-funded public works projects limit of age 70 was eliminated. tions including but not limited to employee to employ only Pennsylvania laborers and All employers with 50 or more employ- absences, temporary skill shortages, seasonal mechanics. ees and all employment agencies are to pro- workloads and special assignments and mote a workplace free of sexual harassment. projects. Puerto Rico Each employer is to adopt a policy against sexual harassment. Such a policy must in- Other laws. A resolution was adopted urg- Wages. Among changes made in 1996 to clude: a statement that sexual harassment in ing the U.S. Congress to enact the Jobs cre- the Commonwealth minimum wage law, the the workplace is unlawful; a statement that it ation and Infrastructure Restoration Act of law will now exempt “artisans” from the is unlawful to retaliate against an employee 1997. The bill would provide $250 billion minimum wage provisions. The definition for filing a complaint or for cooperating in for emergency public works jobs over a 5- of artisans is limited to craftspersons who an investigation of a complaint for sexual ha- year period with priority for hiring given to specialize in traditional Puerto Rican arts rassment; a description and examples of welfare recipients, the long-term unem- and crafts. Such persons would include those sexual harassment; a statement of the conse- ployed, victims of plant closures, youth and who carve religious and native figures from quences for employees who are found to have unemployed building trades workers. Puerto Rican folklore; those who make tra- committed sexual harassment; a description ditional musical instruments, pottery, weav- of the process for filing internal complaints ing, and ceramics; and others. and the work addresses and telephone num- Automobile salespersons who are paid bers of the person or persons to whom com- Other laws. Regulations of the Department on a commission or commission plus salary plaints should be made; and the identity of of Labor, Licensing and Regulation, Residen- basis will now be exempt from overtime pro- the appropriate State and Federal employment tial Builders Commission, relating to licens- visions. Unlike the Federal law, the exemp- discrimination enforcement agencies, and ing of residential builders were approved by tion is contingent on commission earnings directions on how to contact them. All cur- the legislature. equivalent to at least time and one-half the rent and new employees are to receive a writ- applicable statutory minimum wage. ten copy of the employer’s policy. Employ- South Dakota ers are encouraged to conduct education and Discharge. The law which prohibits firing training programs for supervisors and man- Wages. The minimum wage law was workers without just cause was amended in agers and employees. amended to increase the hourly rate from

Monthly Labor Review January 1998 19 $4.25 to $4.75 on April 1, 1997, and to $5.15 cies Clearmghouse was authorized to assign Private employment agencies. A temporary on September 1, 1997. The tip credit provi- an employee to serve as a work-family facili- employment service may not deny an appli- sion was changed to match the Federal re- tator who will be responsible for assisting cation for, or placement in, a job to an indi- quirement of a $2.13 per hour cash wage for State agencies in developing work policies vidual solely because the individual has not tipped employees (the law previously permit- that help agency employees meet their work earned a high school diploma or graduate ted a 50-percent credit toward the minimum and family responsibilities. equivalency diploma, unless the job or the wage). The State also adopted the Federal client requires such education as necessary subminimum opportunity wage for 18- and Equal employment opportunity. Religion and to perform the duties of the position. 19-year-olds (the State law does not cover age were added to the list of those prohibited minors under age 18). forms of employment discrimination that can Other laws. Any rule adopted by the Board The act that specifies the time when wages be the motivating factors for an employment of Criminal that regulates the posses- are due to employees after separation or res- practice, if combined with objective job-related sion and use of tobacco products by Depart- ignation was amended. In those instances in factors to attain diversity in the employer’s ment of employees must pro- which an employer separates an employee work force, and not be considered to be an vide that employees of the department are per- from the payroll, the wages will now be due unlawful employment practice. mitted to use tobacco products during work and payable not later than the next regular Employment discrimination on the basis hours at times and locations designated by the stated pay day for which those hours would of genetic information concerning an indi- board. Permitted smoking areas are to be in have normally been paid rather than within 5 vidual or because of the refusal of the indi- locations that do not negatively affect the com- days of separation as before. In the case of a vidual to submit to a genetic test was prohib- fort or safety of any employee or inmate. resignation, the wages are also now due and ited. It will be an unlawful employment prac- payable not later than the next regular stated tice: 1) if an employer fails or refuses to hire Utah pay day for which those hours would have an individual, discharges an employee, or normally been paid. otherwise discriminates against an individual Wages. An administrative rule, adopted in with respect to compensation or the terms, 1996, provided for an increase in the State minimum wage rate from $4.75 per hour to conditions, or privileges of employment; 2) if a labor organization excludes or expels $5.15 on September 1, 1997. Other laws. The Institute for Labor Stud- from membership or otherwise discriminates ies established within the Department of La- against an individual; or 3) if an employment Child labor. Sections of the alcoholic bev- erage control act prohibiting the employment bor was renamed the Institute for Labor-Man- agency classifies or refers for employment, of minors by restaurants licensed to sell or agement Studies. In addition, a representa- fails or refuses to refer for employment, or dispense alcoholic beverages were amended tive from business with at least 5 years of otherwise discriminates against an individual. to allow minors to be employed in these es- experience in labor-management relations is tablishments to operate cash registers or other to be appointed to the Institute’s executive Workerprivacy. A peace officer may not be sales recording devices. steering committee. suspended, discharged, or subjected to any other form of employment discrimination Employee leasing. The Employee teasmg Texas because he or she refuses to submit to a poly- graph examination as part of an internal in- Company Licensing Act was amended to Wages. The act, which criminally penalizes vestigation regarding the conduct of the peace add, to the criteria for classification as an an employer who, at the time of hiring an officer. Exceptions are permitted in cases employee leasing company, a requirement employee, intends to avoid payment of wages which the complainant submits to and passes that the firm receives funds from a client earned and fails to make payment upon re- a polygraph examination; the peace officer company or leasing company employees quest, was amended. It now also applies to is ordered to take an examination by the head from which it is obligated to pay taxes, in- cases in which an employer intends to avoid of the law enforcement organization if the surance, or benefits on behalf of the employ- payment of wages to a current employee, in- subject matter of the complaint is confined ees. Added to the qualifications for licen- tends to continue to employ the employee, and to the internal operations of the organiza-tion sure were criminal background checks of fails, after demand, to pay those wages. An or if the head of the organization believes that company owners, officers or directors and a employer now commits a separate offense for the circumstances are extraordinary and that certified audit by an independent certified each pay period during which the employee the integrity of the peace officer or the law public accountant showing at least $50,000 earns wages that the employer fails to pay. enforcement organization is in question. net worth as starting capital. To maintain the Employers who are required by State or Similar legislation provides that an em- license, the employee leasing company must Federal law to deduct from an employee’s ployee of the Department of Criminal Jus- submit an annual certified audit. Other new wages an amount garnished under a withhold- tice who is the subject of a written complaint provisions require specified State agencies ing order, may deduct monthly an adminis- made by or filed with the department may to inform the Department of Commerce if trative fee in addition to the amount required not be suspended, discharged, or subjected an employee leasing company fails to com- to be withheld. to any other form of employment discrimi- ply with the law, make these companies le- nation by the department because he or she gally responsible for workers’ compensa- Family issues. The Work and Family Poli- refuses to take a polygraph examination. tion, and allow the Department of Commerce to seek judicial intervention if the financial

20 Monthly Labor Review January 1998 condition of a licensee or unlicensed com- hour on July 1, 1997, and $2.89 on October men and the jobs that are dominated by pany is impaired to the extent of posing a 1, 1997. women; the size of any wage gap found; and significant threat to the public. if male- and female-dominated job classes Family issues. Employees now will be en- at the same grade level have the same or Inmate labor. Work programs for inmates titled to take unpaid leave to participate in similar qualifications. Findings and recom- of the State prison will now also be offered preschool or school academic activities of mendations are to be submitted to the Gov- to inmates of county jails. Private businesses the employee’s child, stepchild, foster child ernor and the 1998 Session of the General that provide services, agricultural products, or ward. Employees can take up to 4 hours Assembly. or manufactured products for export are to in any 30-day period and not to exceed 24 pay inmates wages that are determined by hours in any 12-month period. They can use Child labor. The Department of Education, the Department of Corrections, but are not this unpaid leave to attend a parent-teacher in cooperation with the Departments of La- to displace local Utah workers as a result of conference; to accompany a child, parent, bor and Industry and Taxation, was directed the employment of inmates. spouse or parent-in-law to routine medical to study ways to encourage business partici- or dental appointments; to accompany a par- pation in school-to-work transition initia- Discharge. As part of a law amending the ent, spouse or parent-in-law to other appoint- tives, mentoring, and apprenticeship pro- judicial code, a section was added providing ments for professional services related to grams. Among items to be considered are that an employer may not discharge an em- their care and well-being; to respond to a the feasibility and appropriateness of pro- ployee or otherwise coerce the employee re- medical emergency involving the em- viding financial incentives, such as tax cred- garding employment because he or she attends ployee’s child, parent, spouse or parent-in- its, to encourage business participation in a deposition or hearing in response to a sub- law; or other similar activities. An employer such initiatives. Also to be considered are poena. An employer in violation is guilty of may require that leave be taken in a mini- potential business liability and labor law criminal contempt and upon conviction may mum of 2-hour segments. Employees are to concerns. Findings and recommendations be fined up to $500 or imprisoned for up to 6 provide the employer with as much notice are to be submitted to the Governor and the months or both. In addition, the employee may as possible, but at least 7 days before leave 1998 Session of the General Assembly. bring a civil action for recovery of wages lost is to be taken except in the case of an emer- A resolution was adopted directing the as a result of the violation and for an order gency. At the employee’s discretion, he or Standing Subcommittee on School Dropout requiring reinstatement. she may use accrued paid leave, including Prevention to study the potential impact of vacation and personal leave. lowering the compulsory school attendance Other laws. The State Industrial Commis- age and the use of in-school suspensions on school drop-out in the public schools. sion was eliminated and replaced with a La- Virginia bor Commission effective July 1, 1997. Among changes: the three-commissioner Wages. The State minimum wage law adopts Agriculture. The Commissioner of Labor form of government was replaced by a single the Federal minimum wage rate by reference. and Industry is to establish an Interagency commissioner appointed by the governor; a Therefore, the State rate rose from $4.75 per Migrant Worker Policy Committee comprised labor relations board was created with du- hour to $5.15 on September 1, 1997. of representatives from State agencies who ties including prevention of unfair labor The minimum wage law was amended to are involved with migrant and seasonal practices; an appeals board to the Labor clarify that it adopts the current Federal mini- farmworkers and their employees. The mem- Commission was established; and the De- mum wage rate and training wage provisions. bership of the existing Interagency Migrant partment of Employment Security was trans- The U.S. Congress was urged to amend Worker Policy Committee, created by execu- ferred into the newly created Department of the Federal Fair Labor Standards Act to pro- tive orders will be transferred to the Inter- Workforce Services. vide an overtime exemption for Emergency agency Migrant Worker Policy Committee Medical Service employees similar to that established by the Commissioner. The Com- Vermont provided for fire, and corrections mittee is to coordinate its activities with the employees. Migrant and Seasonal Farmworkers Board Wages. The State minimum wage rate was The wage payment law was amended to appointed by the Governor. increased from $5.00 per hour to $5.15 on authorize the Governor to enter into recip- July 1, 1997 and to $5.25 on October 1, rocal agreements with other States and the Washington 1997. The training wage, authorized in 1996 District of Columbia for the collection of legislation, was eliminated. The Commis- claims for wages and other demands upon Wages. The overtime provisions of the sioner of Labor and Industry was directed claims filed with the Department of Labor minimum wage law were amended to create to adopt rules to be effective July 1, 1997. It and Industry. conformity between State overtime pay stan- amended the minimum wage order affect- The Joint Legislative Audit and Review dards and Federal Fair Labor Standards Act ing the hotel, motel, tourist place and res- Commission was directed to study pay eq- standards for retail commissioned salesper- taurant industry by making the tip credit rate uity in the State work force. It is to deter- sons. These individuals will be exempt from 45 percent of the State minimum wage rate. mine which State jobs are segregated by gen- the requirement for time and one-half over- The State basic wage rate for these indus- der; within each pay grade, if there is a wage time pay, for hours worked in excess of 40 a tries was thereby established as $2.83 per gap between the jobs that are dominated by week. This is provided that their regular rate

Monthly Labor Review January 1998 21 State Labor Laws

of pay is more than one and one-half times ture,” for purposes of regulation, as farming, wage may not be paid for a cumulative pe- the State minimum wage rate and if more including the cultivating and tillage of the riod of mom than 90 days per employee. New than one-half of their compensation for a soil; dairying; the production, cultivation, businesses are exempt from this go-day limit. representative period, of not less than 1 growing, and harvesting of any agricultural month, is derived from commissions on sales or horticultural commodity; the raising of Wisconsin of goods or services. livestock, bees, fur-bearing animals, or poul- The list of those commissioned sales- try; and any practices performed by a farmer Wages. The State minimum wage rate for people exempt from overtime pay require- or on a farm, in connection with the farming adult workers was increased from $4.75 per ments of the minimum wage law was operations, including but not limited to prepa- hour to $5.15 on September 1 by adminis- amended to add those who sell farm imple- ration for market and delivery to storage, trative action. The agricultural rate, oppor- ments to ultimate purchasers. To be exempt, market, or carriers for transportation to mar- tunity wage, and tip credit rate remain un- these salespersons, like other exempt com- ket. It was specified that “agriculture” does changed. missioned salespersons, must be paid the not include a farmer’s processing for sale or greater of an hourly rate, not less than the handling for sale a commodity or product Other laws. The name of the Department State minimum wage rate and overtime pay grown or produced by someone other than of Industry, Labor and Job Development was of one and one-half times that hourly rate the farmer or the farmer’s employees. changed to the Department of Workforce for all hours worked over 40 in a week; or a Development. straight commission, a salary plus commis- Equal employment opportunity. State agencies are encouraged to participate in sion, or a salary plus bonus applied to gross Wyoming salary. supported employment programs designed to give persons with developmental disabili- Child labor. The Child Labor Law was ties a greater chance to fill positions in the Family issues. A new section was added to amended to eliminate the requirement for a general work force. The Department of So- the family leave law providing that the De- work permit for minors under the age of 16 cial and Health Services, along with the De- partment of Labor and Industries is to stop and to replace it with a requirement that em- partment of Personnel and the Office of Fi- administering and enforcing the law unless ployers maintain a proof of age document nancial Management is to identify agencies the Federal Family and Medical Leave Act is for employed minors. The acceptable forms that have positions and funding to imple- either repealed or amended so that it provides of proof of age include a birth certificate; a ment supported employment activities less family leave than that which is provided properly prepared immigration and natural- within their existing budgets. The supported under the State law. In determining whether ization form I-9, showing the age of the employment positions will not count against the Federal law provides the same or more child; or any other document, approved by an agency’s allotted full-time equivalent em- leave, the Department is to consider only if the Department of Employment, showing the ployment positions. Such programs are not the total period of leave allowed under the age of the child. Age 14 is established as the to displace current employees or abrogate amended Federal law is 12 or more work- minimum age for employment, except for any reduction-in-force rights. weeks in a 24-month period, and if the types farm or domestic work or lawn and yard ser- of leave authorized under the amended Fed- vice, except that it will not be unlawful for a West Virginia eral law are similar to those provided in the child under age 14 to be employed in a non- State law. An employee’s right under State Wages. Legislation was enacted increasing hazardous occupation outside of school law to be returned to a workplace within 20 the State minimum wage rate from $4.25 an hours by his or her parents, grandparents, miles of the employee’s workplace when hour to $4.75 on October 1, 1997, with a fur- or legal guardian, or by a business owned leave commenced will remain in effect. ther increase to $5.15 scheduled for Septem- by his or her parents, grandparents, or legal ber 1,1998. A training wage of $4.25 per hour guardian. The maximum fine for violating Agriculture. The Industrial Safety and may be paid to employees, under age 20, first the child labor law was increased from $100 Health Act was amended to define “agricul- hired after October 1, 1997. The training to $750. 0

Footnotes

’ The Kentucky legislature met in special ses- the article, which is based on information re- Missouri, Montana, Nevada, Oklahoma, Penn- sion only in 1997 and did not enact any labor ceived by November 7, 1997. Sylvania, and Virginia. legislation. The District of Columbia, Indiana, 2 The 12 States are: Arkansas, Colorado, 4 Rates increased in Alaska, Connecticut. Kansas, Massachusetts, and New Mexico did not Idaho, Michigan, Minnesota, Nebraska, North Delaware, District of Columbia, Iowa, Maine, and enact significant legislation in the fields covered Carolina, North Dakota, South Dakota, Vermont, New Hampshire. by this article. Information about the Virgin Is- West Virginia, and Wisconsin. 5 The five States arc: California, Massachu- lands was not received in time to be included in 3 The rates rose in Guam, Illinois, Maryland, setts, Oregon, Rhode Island, and Utah.

22 Monthly Labor Review January 1998