State Labor Laws, 2003

State labor legislation enacted in 2003 Minimum rates, child labor, discrimination, crime victim protection, and military re-employment rights were among major legislation enacted or revised during the year

Richard R. Nelson and John J. Fitzpatrick, Jr.

greater volume of labor legislation was enacted in . rates increased as the result of new 2003 than in recent years, despite the fact that budget legislation in Illinois, New Mexico, Rhode Island, and Vermont; Aconcerns were a priority for many States.1 California, as a result of previous laws in Alaska, Connecticut, Hawaii, Illinois, and Texas enacted particularly large numbers of laws. and Maine; and as a result of prior ballot measures in Oregon Legislation enacted addressed several areas of employment and Washington. In Alaska, a 2002 enactment that provided standards and included many important measures: increased for indexed rate increases was repealed. minimum wage rates; expanded coverage of family and medi- As of January 1, 2004, minimum wage rates were higher cal leave laws; additional prohibitions on children working in than the Federal standard in Alaska, California, Connecticut, hazardous occupations; and new measures addressing - Delaware, the District of Columbia, Hawaii, Illinois, Maine, place security. Massachusetts, Oregon, Rhode Island, Vermont, and Wash- Additional States provided leave for employees who are ington. Of the 43 States with minimum wage laws, only 2 have crime victims; protected the earnings of children working in rates lower than the Federal rate of $5.15 per hour.2 the entertainment industry; eased regulation of the private Santa Fe, New Mexico, and San Francisco, California, industry; and protected the of re- adopted local minimum wage ordinances. Conversely, a new serve and guard members returning from military active duty. Texas law provides that State law supersedes a wage estab- New protections from discrimination were enacted for lished in an ordinance, and, in Florida, political subdivisions transgender individuals, prohibitions were enacted on the are barred from establishing, or otherwise requiring an em- purchase of goods produced through forced labor, and a Cali- ployer to pay a minimum wage, other than a Federal minimum fornia law requires employers to provide healthcare benefits. wage, or applying a Federal minimum wage to those wages This article summarizes significant State labor legislation exempt from Federal coverage. enacted in 2003. It does not, however, cover legislation on Enactments in Utah and Vermont changed the amount of occupational safety and health, employment and training, la- the tip credit authorized for employers to meet a portion of the bor relations, employee background clearance, economic de- minimum wage. velopment, and local ordinances. Articles re- New minimum wage and law exemptions were en- porting on changes in insurance and workers’ acted in Arkansas and Montana, and a new overtime exemp- compensation laws appear separately in this issue. tion was enacted in Alaska. A Maine law permits State employees to be awarded com- pensatory time in lieu of overtime pay. Richard R. Nelson and John J. Fitzpatrick, Jr. are State Standards Prevailing wage laws pertaining to public works construc- Advisors in the Division of External Affairs, Wage and Hour tion projects currently exist in 32 States and the Federal Gov- Division, Employment Standards Administration, U.S. 3 Department of Labor. ernment. This year, as usual, a mix of laws was enacted, with E-mail: [email protected] some strengthening and with others weakening existing laws.

Monthly Labor Review January 2004 3 State Labor Laws, 2003

The threshold amount for coverage was increased by leg- Family issues. In a continuing expansion of benefits and islation in Maine and administratively in Ohio and Wisconsin. rights under family and medical leave laws, the Connecticut Exemptions from coverage were enacted in Montana and Or- law was amended to require employers to permit employees egon, while law coverage was expanded in California, Illinois, the use of up to 2 weeks of to attend to a serious Nevada, and New Jersey. health condition of a family member, or for the birth or adop- The Montana law was amended to require that additional tion of a child. In Hawaii, employees in the public sector will trades be included in the prevailing wage survey, and the again be covered under the State Family and Medical Leave Washington Department of Labor is to establish a goal of Act. Additionally, public sector employees are now entitled conducting surveys for each trade every 3 years. to at least 4 hours of paid leave per calendar year to attend Among other developments, primary contractors are to be parent-teacher conferences. identified in Alaska; new recordkeeping requirements were Illinois enacted a law requiring certain employers to pro- enacted in Illinois; penalties for violation of prevailing wage vide unpaid leave for an employee victim of domestic or sexual laws were increased in Nevada and revised in California; and violence, or one who has a victimized family or household the Maryland Advisory Council on Prevailing Wage Rates member. Oregon employers with six or more employees must was abolished. Contractors in California may now bring court provide leave to attend criminal proceedings for eligible em- action to recover increased labor costs in certain circum- ployees who have been crime victims or who have an immedi- stances. ate family member who has been a crime victim. A similar law In Illinois, an Executive order requires State agencies to enacted in California also extends protection to registered consider project labor agreements for public works projects. domestic partners of victims. Texas will provide limited com- An Executive order issued in Michigan permits the debarment pensation to a family member of a deceased violent crime vic- of a contractor who has violated any State or Federal law. tim to attend the funeral, or for lost compensation, resulting Among several changes to the Colorado wage payment from bereavement leave. law, the State and its agencies were exempted from coverage. Rhode Island employers may provide unpaid breaks for Several classifications of employees were exempted from cov- nursing mothers, while a Wyoming resolution encourages erage of the Wisconsin law. Payment of wages by direct de- breastfeeding and commends employers who make accom- posit was authorized in Arkansas and Texas, and the North modations. Dakota provision was amended. The Maryland Advisory Committee on the Wage and Hour Law was abolished. . A California law requires that employees of Civil penalties for failure to pay wages increased in Califor- large and medium-sized employers receive healthcare benefits. nia. The Nevada, Oklahoma, and Tennessee penalty provi- sions were revised. Child labor. A trend continued with Minnesota exempting Coverage of the wage payment law was expanded in Kan- children working as referees, umpires, or officials from the sas. California enacted wage protections for workers in the minimum age requirement of the child labor law, while Virginia car wash industry. lowered the minimum age for referees from 13 to 12. Hours New deductions were authorized in Maryland, and night work changes were enacted in Hawaii, Louisiana, North Carolina, and Texas. Payment into a trust account was and New York, while Maine revised its hazardous occupation approved in Virginia. orders concerning confined spaces and heights. Hawaii also It was specified that the Nevada labor commissioner is to prohibited employment in the adult entertainment industry. enforce all labor laws without regard to whether an employee Indiana now requires that minors be accompanied by an adult is lawfully or unlawfully employed. for work after 10 p.m. Civil penalty assessment procedures were revised in Tennessee. Hours. Despite several bills introduced on the subject, no Louisiana employers are no longer required to keep work new legislation was enacted this year regulating mandatory permits on file. In addition, employment certificates are to be overtime. A committee established in Louisiana will assess submitted electronically by school superintendents. the extent of registered nurse mandatory overtime use. Laws providing for judicial approval of artistic contracts of An Arkansas statute limiting work hours in saw and plan- minors and requiring that a percentage of earnings be set ing mills was repealed, and changes were made in the West aside in trust were enacted in Nevada, New York, North Caro- Virginia law regulating passenger motor carriers. lina, and Tennessee, and amended in California. Certain exceptions were authorized from the meal period provision in California, and in the rest and meal period provi- Industrial homework. California changed the procedures for sions in Washington. the disposition of articles or materials unlawfully manufac-

4 Monthly Labor Review January 2004 tured at home, while adding an appeal process for the confis- public safety officer photographs; and in Virginia for nursing cation and disposition of the goods. facility staff records and reports.

Equal employment opportunity. An Illinois Civil Rights Act Workplace violence/security. A growing body of legislation of 2003 bars any public-sector employer from discriminating is being enacted addressing issues of workplace violence and on the basis of race, color, or national origin. An Executive security. Background checks for workers in various sensitive order issued in Arizona prohibits State entities from discrimi- positions were enacted in 2003 in North Dakota, Texas, Utah, nating on the basis of sexual orientation, and New Mexico and Virginia. now bans employment discrimination based on sexual orien- tation and gender identity. Gender identity discrimination is Employee leasing. Arkansas repealed its Employee Leasing also now prohibited in California and in Pennsylvania for State Act and replaced it with a comprehensive Professional Em- agencies. An Executive order issued in Kansas requires State ployer Organization Recognition and Licensing Act. Profes- agencies to adopt policy statements prohibiting sexual ha- sional employer organizations in Utah will now be required to rassment. California law was amended to hold employers po- register annually rather than be licensed, and the Montana tentially liable for of workers by clients, law was amended to add an exemption for certain arrange- customers, and other third parties. California also prohibited ments by healthcare facilities. State agencies from contracting with companies that discrimi- nate against domestic partners in the provision of benefits. Private employment agencies. The trend of easing regula- Among other measures that were enacted relating to vari- tion of the industry continued this year with Maryland elimi- ous forms of employment discrimination, Illinois employers of nating the licensing and regulation of employment agencies four or more employees are prohibited from wage discrimina- and employment counselors; Minnesota repealing the law tion based upon sex. Illinois also will now prohibit employers regulating and requiring licensing of entertainment agencies; from placing native language restrictions on employees dur- with Louisiana and North Dakota no longer requiring licens- ing non--related activities. Vermont revised mandatory ing of employer-fee-paid employment services; and with Or- age limits for State Supreme Court justices, and egon excluding employment listing services from coverage. Wyoming removed the upper age limit for age discrimination The North Carolina Commissioner of Labor now has the protection. Training will be required for certain State employ- authority to enforce the law dealing with the personal service ees on disability employment law in California, and on State industry. and Federal discrimination laws and investigation techniques In Illinois, employers are now prohibited from knowingly in Connecticut. contracting with day and temporary labor service agencies to The Florida Attorney General may now bring civil action provide replacements for striking or locked out workers. for damages, and school districts in South Dakota may con- sider the sex of an employee for employment duties in locker . A Act, applicable to private- rooms. sector employers, was enacted in Illinois, protecting employ- ees from retaliation for disclosing information about employer Worker privacy. Over the last few years, several States have violations of State or Federal laws, rules, or regulations. An adopted legislation providing immunity from civil liability to Executive order was issued providing similar protection for employers who furnish information about a current or former State agency employees. employee’s job performance to a prospective or current em- Arkansas, California, and Oklahoma expanded the scope ployer. New measures were adopted in Louisiana and in Utah of their whistleblower protection acts. for law enforcement employers. A similar law in Montana was repealed. Provision was also made for the disclosure, under Military re-employment rights. Continuing the trend that certain circumstances, of peace officer records in California, began following the events of September 11, 2001, and the and Indiana public employee disciplinary action records. ensuing military actions in Afghanistan and Iraq, several ad- Laws were enacted providing for the confidentiality of ditional jurisdictions enacted legislation related to reinstate- employee information in Arkansas for non-elected municipal ment rights of reserve or guard members returning from active and county officials; in Florida concerning employee assis- duty. Many of these measures amended laws to provide guard tance information of public employees; in Louisiana for direct members with the same rights as provided to those called for deposit payroll information and medical records; in North Federal duty. Some of the measures provide for supplemental Dakota for mediation records; in Ohio for firefighter and emer- pay or continuation of health benefits while an individual is gency medical technician personnel records; in Oregon for on military leave.

Monthly Labor Review January 2004 5 State Labor Laws, 2003

State labor departments. In Michigan, the name of the Depart- Idaho adopted a Voluntary Contributions Act regulating ment of Consumer and Industry Services was changed to the political contributions by labor organizations. Department of Labor and Economic Growth, and a new Wage A law enacted in Tennessee prohibits the termination of an and Hour Division was created within the department. In Idaho, employee who is a volunteer firefighter if his or her absence or the Disability Determinations Service was transferred from the lateness to work is due to responding to an emergency. Illi- Executive Office of the Governor to the Department of Labor. nois made it unlawful to use a false academic degree for the The Utah Labor Commission is to assume certain coal mine purpose of obtaining employment. regulatory functions previously performed by the Labor Application of the New York anti-sweatshop laws were Commission’s Safety Division. expanded to allow public schools and colleges in the State to The Maryland Commissioner of Labor and Industry may now consider labor standards when evaluating bids for sports charge a fee to cover the cost of providing mediation services. equipment. An Illinois State Prohibition of Goods from Forced Labor Act provides that each contract entered into by a State Other laws. Among other laws enacted, Arkansas and Iowa agency for the procurement of equipment, materials, or sup- will provide employment leave for State employees to serve plies must specify that foreign-made goods produced under as bone marrow or organ donors. The Arkansas law also the contract were not produced in whole or in part by forced, applies to public school employees. Hawaii joins several other convict, or indentured labor. A similar law was enacted in States by now providing for paid leave for American Red California. Also, California made it unlawful to enter into a Cross disaster volunteers. A Mississippi measure creates a contract for labor or services with a , farm labor, program of paid educational leave for hospital employees. garment, janitorial, or security guard contractor, if it is known A California measure permits employees to sue their em- that the contract does not provide sufficient funds to permit ployers for violations of the State labor code. A Minnesota compliance with all applicable laws. Texas made it unlawful to law permits civil actions against the State to be brought in traffic another person with the intent that the trafficked per- Federal court by current, former, or prospective employees of son engage in forced labor or services. the State who are aggrieved by the State’s violation of vari- The following is a summary, by jurisdiction, of labor legis- ous Federal laws. lation enacted in 2003.

Alabama that it applies to all claims for overtime than weekly. By July 1, 2004, the Depart- based on employment on and after July 1, ment of Labor and Workforce Development Other laws. The law allowing persons who 1990, and before June 2, 1999, and to all is to provide for filing these reports by se- are regularly employed by the State to engage pending administrative and judicial actions cure online electronic filing. in employment in the private sector—if the that are based on the calculation of over- Before commencing work on a public employment is not specifically prohibited by time for employment during that time pe- construction contract, the person entering statute, and there is no conflict with the job riod. The requirement for the payment of into the contract with a contracting agency of the State employee—was amended to limit overtime at the rate of one and one-half is to designate a primary contractor who this authorization to those employees whose times the regular rate of pay for hours must file a notice of work with the Depart- pay is $75,000 or less exclusive of benefits. worked in excess of 8 hours a day and 40 ment of Labor and Workforce Development. In addition, the law provides that no em- hours a week had been invalidated by a The notice of work must list work to be ployee is to engage in employment in the pri- court decision and then reenacted in 1999. performed under the public construction vate sector during their scheduled working In determining whether an employee has contract by each contractor who will per- hours. The entity that employed the State worked more than 40 hours a week, the form any portion of work on the contract employee may not do business with or be number of hours worked is calculated and the contract price being paid to each employed by the department that employs without including those hours worked in contractor. The primary contractor must the State employee. excess of 8 a day, because the employee is pay all filing fees for each contractor per- paid overtime compensation separately, forming work on the contract, including a Alaska based on those hours. filing fee based on the contract price being Wages. As the result of prior legislation, the The overtime pay requirements of the paid for work performed by the primary State minimum wage rate rose to $7.15 per minimum wage law were amended to exempt contractor’s employees. Upon completion hour, from $5.65, on January 1, 2003. from coverage work performed by flight crew of all work on the contract, the primary con- The minimum wage law was amended to members employed by air carriers subject to tractor must file with the department a no- eliminate a provision enacted in 2002 that the Federal Railway Labor Act. Flight crew tice of completion together with payment would have required annual adjustments to is defined as the pilot, co-pilot, flight engi- of any additional filing fees owed due to in- the minimum wage rate based on the rate of neer, and flight attendants. creased contract amounts. Within 30 days inflation. The first indexed rate would have The submission of payroll information after the department’s receipt of the notice become effective on January 1, 2004. by contractors and subcontractors perform- of completion, the department is to inform The section of law requiring the pay- ing work on a public construction contract is the contracting agency of the amount, if any, ment of overtime was amended to provide now to be made every second week rather to be withheld from the final payment.

6 Monthly Labor Review January 2004 Inmate labor. A Correctional Industries Pro- cilities of the nonprofit welfare agency, and employer organization and the recipient. The gram Act of 2003 was adopted. This Act who are orphans, in foster care, abused, ne- license application is to include the name and allows the administrative costs of the Cor- glected, abandoned, homeless, in need of su- address of the organization, a taxpayer or rectional Industries Program, including em- pervision, or otherwise in crisis situations employer identification number, a statement ployee and benefits, to be paid from that lead to out-of-home placements; and of ownership, a statement of business expe- product revenues obtained from the correc- who are compensated at an annual rate of not rience, and a financial statement. Workers’ tional industries fund rather than the General less than $13,000, or at an annual rate of not compensation coverage is required. Fund. less than $10,000 if the employee resides in the residential facility and receives board and Whistleblower. The scope of the State Other laws. The Governor, through the issu- lodging at no cost. Whistle-Blower Act, which protects public ance of an administrative order, may autho- Employers may now pay workers by employees from adverse action for report- rize State employees who are members of a electronic direct deposit into the employee’s ing, in good faith to an appropriate author- reserve or auxiliary component of the armed account in addition to payment in currency ity, the existence of waste of public funds, forces of the United States—including the or by check as before. The employee may property, or manpower, or the violation of organized militia of Alaska, consisting of the opt out of electronic direct deposit by pro- any State law, rule or regulation was ex- Alaska National Guard, the Alaska Naval Mi- viding the employer a written statement re- panded to also protect disclosures concern- litia, and the Alaska State Defense Force— questing payment by check. An employee ing waste of Federal funds, property, or and who are called to active duty by the ap- has a right to be paid in currency if the em- manpower administered or controlled by a propriate State or Federal authority to con- ployer has ever paid the employee with a public employer. tinue to receive the equivalent of their State check drawn on an account with insufficient compensation and some or all of their State funds. Other laws. A law was enacted providing benefits. Benefits include credited service in employment leave for State employees or a State retirement system, membership in the Hours. The statute that had restricted work public school employees to serve as bone supplemental system, and hours in saw and planning mills to 10 hours a marrow or organ donors. These employees group life and health insurance provided un- day was repealed. are entitled to no more than seven days of der State law or under a collective bargaining leave to serve as a bone marrow donor and no agreement. Child labor. The law making it unlawful for more than thirty days of leave to serve as an any wholesaler, retailer, or transporter of alco- organ donor in any calendar year. In order to Arizona holic beverages to allow any employee or any receive the leave they must: 1) request the other person under 21 years of age to sell, leave in writing; 2) provide the employing Equal employment opportunity. The Gover- transport or handle alcoholic beverages was agency written verification by the physician nor issued an Executive order directing that amended to allow persons 19 years of age and who is to perform the transplant that the no State agency, board or commission is to older, with written consent of a parent or guard- employee is to serve as a human organ or discriminate in employment solely on the ian, to serve and handle alcoholic beverages at bone marrow donor; and 3) provide the em- basis of an individual’s sexual orientation, and on-premises consumption outlets where food ploying agency written verification by the providing that notice is to be given to all State service is a permit requirement. physician performing the transplant that the employees that acts of sexual harassment or employee did serve as a human organ or bone other harassment based on sexual orientation Worker privacy. The law exempting the marrow donor. The State or public school will be a cause for discipline, up to and in- home addresses of non-elected State employ- employee may use the leave without loss or cluding termination of employment with the ees, contained in employer records, from reduction in pay, leave, or credit for time of State. No State agency will be required to being considered public records under the service. A State agency or public school may establish employment goals based on sexual Arkansas Freedom of Information Act was not penalize an employee for requesting or orientation. expanded to also apply to the home ad- obtaining this leave. Other laws. A resolution was adopted urging dresses of non-elected municipal and county An archaic statute was repealed that had the U.S. Congress to enact legislation that employees. made it unlawful for the person in control of would establish a legal worker program for any establishment where three or more per- immigrants who enter the United States Employee leasing. The Arkansas Employee sons are employed, and where any of the through ports of entry, including regulations Leasing Act was repealed, and a comprehen- employees are women, to permit in the work- that require employers to pay minimum sive Arkansas Professional Employer Orga- place any influence, practices, or conditions wages to these workers; that require the nization Recognition and Licensing Act was calculated to injuriously affect the morals of workers to pay payroll taxes; that protect enacted. “Professional employer organiza- the female employees. the workers from exploitation; and that al- tion” is defined as any person engaged in the low the workers to be eligible for employer- business of providing the service of entering California offered health insurance. into a co-employment relationship in which at least a majority of the employees provid- Wages. Voters in the City of San Francisco Arkansas ing services to a client or to a division or approved an ordinance, effective January 1, work unit of a client are covered employees 2004, that requires most employers to pay a Wages. The minimum wage law was amended and in which the arrangement is intended to minimum wage of $8.50 per hour for work to exempt from coverage nonprofit child wel- be, or is, ongoing rather than temporary in performed within the city to those employ- fare agency employees who serve as nature—and employer responsibilities, in- ees who work two or more hours per week. houseparents who are directly involved in cluding the right of direction and control of The wage will be adjusted effective January caring for children residing in residential fa- the employees, are shared by the professional 1st of each year based on increases in the

Monthly Labor Review January 2004 7 State Labor Laws, 2003

Consumer Price Index for urban wage earn- general prevailing rate for holiday and over- employee on behalf of himself or herself and ers and clerical workers for the San Fran- time work, the Director of Industrial Rela- other current or former employees. Any cisco-Oakland-San Jose, California, metro- tions, upon a request by the State or the employee who prevails in any action will be politan statistical area. The wage require- political subdivision, is to determine the entitled to an award of reasonable attorney’s ment will not apply to businesses with fewer wage rates for each , classification, or fees and costs. A civil penalty is established than 10 employees or non-profits until Janu- type of worker that is needed to execute the where one is not specifically provided under ary 1, 2005. Starting on that date, those contract, and provide these wage rates to the the Labor Code. An action may not be main- small businesses and non-profits would pay entity requesting them. tained if the agency or any of its depart- a minimum wage of $7.75 per hour. Effec- The prevailing wage law was amended to ments, divisions, commissions, boards, agen- tive January 1, 2006, all small businesses provide that employers may take credit for cies, or employees has cited a person for the and non-profits would pay the minimum employer payments to pension plans or same violation that the aggrieved employee wage of $8.50 per hour as adjusted based on other contributions against their prevailing is attempting to recover a civil penalty. A the indexed increases. Employees who as- wage obligation, even if the payments are civil penalty will not be awarded if the al- sert their rights to receive the minimum wage not made during the same pay period for leged violation is a failure to act by the Labor will be protected from retaliation. which credit is claimed, as long as the em- and Workplace Development agency. The prevailing wage law was amended to ployer regularly makes the contributions, or Civil penalties were increased for various permit contractors to bring court action to regularly pays the costs, for the plan, fund, labor law violations. If an employer fails to recover increased labor costs, penalties, and or program on no less than a quarterly basis. pay wages or unlawfully withholds wages, legal fees from an awarding body if 1) the The information that the Contractor’s the penalty for a first violation was increased awarding body has told the contractor in State License Board is required to post on from $50 to $100, and the penalty for subse- writing that the work to be covered by the the Internet concerning the status of licens- quent or willful or intentional violations was bid was not a “public work,” or 2) the award- ees is now to include information regarding a increased from $100 to $200 plus 25-per- ing body received actual written notice from licensee’s willful or deliberate violation of cent of the amount unlawfully withheld. the Department of Industrial Relations that the Labor Code. The Labor Commissioner Twelve and one-half percent of the penalty the work to be covered by the bid or contract is to maintain a quarterly updated list of con- recovered will be placed in a fund within the is a “public work” and failed to disclose that tractors and subcontractors who were found Labor and Workforce Development Agency information to the contractor before the bid to have willfully violated the prevailing wage to educate employers about State labor laws. opening or awarding of the contract. Addi- law or to whom a final order has been issued. The penalty for an employer who pays less tionally, the law now permits the contractor Interest will accrue, from the date the wages than the minimum wage rose from $50 to to recover increased costs from an awarding were due and payable, on all due and unpaid $100 per underpaid employee for each pay body that result from the classification of wages. Additionally, the violator will pay a period. The minimum penalty for a railroad the work as a “public work” after the job has penalty of not less than $10 per day for each corporation that violates laws regulating begun, or the awarding body accepted the employee paid less than the prevailing work hours was increased from $200 to contractor’s bid, or the contractor was wage—unless the failure to pay the prevail- $500, and the maximum penalty rose from awarded the contract in circumstances where ing wage was a good-faith mistake that was $1,000 to $5,000. The penalty for violating no bid was solicited. “Awarding body” for promptly and voluntarily corrected. The the laws regulating work hours of employ- purposes of applicability excludes the De- penalty will not be less than $20 per day if ees in underground mines, smelters, or plants partment of General Services, the Depart- the violator was assessed penalties within for the reduction or refining of ores or metals ment of Transportation, and the Department the 3 previous years for prevailing wage vio- was increased from $50 to $100 for the first of Water Resources. lations, and it will not be less than $30 per intentional violation and from $100 to $200 The prevailing wage law was amended so day if the Labor Commissioner determines for each subsequent violation. The penalty that required per diem wages now include that the violation was willful. The maximum for any person who does not hold a State employer payments for worker protection penalty remains at $50 per worker for each contractor’s license and who employs work- and assistance programs or committees es- day of violations. Back wage claims against ers to perform services for which a license is tablished under the Federal Labor Manage- the contractor must be satisfied before funds required was increased from $100 to $200 ment Cooperation Act of 1978, to the extent surrendered by the contractor may be ap- per employee for each day of employment. that the activities of the programs or com- plied to imposed penalties. Legislation was enacted to regulate the mittees are directed to the monitoring and A resolution was adopted reaffirming the employment of workers in the car washing enforcement of laws related to public works. intent of the legislature for the State prevail- and polishing industry. Car wash employ- Additionally, per diem wages also include ing wage law to apply broadly to all projects ers must register annually, after meeting lo- industry advancement and collective bargain- subsidized with public funds, including the cal licensing, bonding and other criteria, with ing agreement administrative fees, provided projects of chartered cities. the Labor Commissioner and pay a registra- that these payments are required under a col- A Labor Code Private Attorneys General tion fee of $250 for each branch location. A lective bargaining agreement pertaining to the Act of 2004 was enacted. Under this law, separate annual fee of $50 for each branch particular craft, classification, or type of any provision of the Labor Code that pro- location is to be deposited into a Car Wash work within the locality or the nearest labor vides for a civil penalty to be assessed and Worker Restitution Fund to ensure the pay- market area at issue. collected by the Labor and Workforce De- ment of wages, penalties, and other damages. If the State or a political subdivision velopment Agency or any of its depart- Employers are also to post a surety bond of thereof agrees by contract with a private en- ments, divisions, commissions, boards, agen- $15,000 for the protection of employees. tity that the private entity’s employees re- cies, or employees, for a violation of the Failure to register may result in a civil fine of ceive, in performing that contract, the gen- code, may as an alternative, be recovered $100 being assessed for each day of viola- eral prevailing rate of per diem wages and the through a civil action brought by an aggrieved tion up to a total of $10,000. Each employer

8 Monthly Labor Review January 2004 must keep accurate and complete employ- ered by a valid collective bargaining agree- Child labor. Laws concerning minors with ment records for 3 years including wages ment that provides for a 35-hour workweek artistic employment contracts were paid, hours worked and tips received. Re- consisting of 5 7-hour days, payment of one amended. A maximum of 15 percent of the newal registrations may not be completed and one-half times the regular rate of pay for minor’s gross earnings was set as the amount until the employer has satisfied final judg- time worked in excess of 7 hours per day, that must be deposited in a trust account. ments for any unpaid wages, and contribu- and a rest period of not less than 10 minutes The parent, trustee or guardian must pro- tions to the Unemployment Insurance Code, every 2 hours. vide the employer, within 10 business days, the Employment Development Department, a photocopy of the trustee’s statement re- and Social Security and Medicare contribu- Family issues. Employers are to allow an garding the established account. In cases tions are up to date. employee who is a victim of a crime, an im- where the parent, guardian or trustee fails to In response to a 2002 court decision mediate family member of a victim, a regis- provide the employer with evidence of the (Smith v. Rae-Venter Law Group), an amend- tered domestic partner of a victim, or the trust being established within 180 days of ment was made to the wage claim procedure child of a registered domestic partner of a the commencement of employment, the em- to specify what determines a successful ap- victim to be absent from work in order to ployer is then required to deposit 15 percent peal of a decision of the labor commissioner. attend judicial proceedings related to that of the minor’s gross earnings into a special An employee claiming to be owed wages may crime. Prior to the absence, the employee is account held by the Actors’ Fund of America. either file a civil action against the employer to give the employer a copy of the notice of The Actors’ Fund is required to notify the or file a wage claim with the labor commis- each scheduled proceeding that is provided beneficiary of their fund entitlement within sioner seeking administrative relief. If the la- to the victim. When advance notice is not 60 days of the minor reaching 18 years of bor commissioner’s decision is appealed to feasible or an unscheduled absence occurs, age. The Labor Commissioner may only is- trial court and the party seeking review is the employer is not to take any action sue a work permit for 6 months, and if the unsuccessful, the trial court is to assess costs against the employee if he or she, within a permit is not accompanied by a trustee’s and reasonable attorney’s fees against the reasonable time, provides the employer with statement demonstrating the creation of a party who filed the appeal. It is now speci- documentation evidencing the judicial pro- trust account, then the permit is invalid after fied that an employee is successful so long ceeding. An employee who is absent from 10 business days from the date of issuance. as the employee recovers a judgment in his work may use his or her accrued paid vaca- or her favor. This overturns the court hold- tion time, personal leave time, sick leave Apparel industry. The Public Contract Code ing that the appealing party is unsuccessful time, compensatory time off that is other- was amended to require the State to provide unless the court judgment is more favorable wise available to the employee, or unpaid a “Sweatfree Code of Conduct“ and pro- to the appealing party than the labor leave time, unless otherwise provided by a curement policy that requires State agency commissioner’s award. collective bargaining agreement. The em- procurement contracts (other than those The law regulating the payment of ployer is to keep confidential any records related to public works contracts) to include or wages by State agencies, which requires regarding the employee’s absence from work. provisions that prohibit the production of that the employee be furnished with a writ- An employer may not discharge from em- material, equipment, or supplies by forced ten itemized statement showing all deduc- ployment or in any manner discriminate labor, convict labor (not including work or tions made from his or her salary or wages, against an employee because of his or her services provided by an individual em- was amended to permit—at the discretion of absence. ployed by the Prison Industry Authority), the employee—a State agency to issue the indentured labor under penal sanction, abu- required statement electronically rather than Health insurance. A Health Insurance Act sive forms of child labor, or exploitation of in writing. The provision of an electronic of 2003 was enacted. This law provides children in sweatshop labor. This prohibi- statement of itemized deductions will be con- for creation of the State Health Purchas- tion includes the procurement or laundering tingent upon certain funding contingencies. ing Program administered by the Managed of apparel, garments, and accessories includ- A resolution was adopted proclaiming Risk Medical Insurance Board. Large and ing uniforms. Contractors must certify that April 15th, 2003, to be Equal Pay Day in medium-sized employers will be required no covered items have been laundered or California and urging California citizens to to provide their employees with produced by or with the benefit of sweat- recognize the full value of women’s skills healthcare benefits either directly or shop labor under penalty of perjury. False and significant contributions to the labor through the purchasing program by pay- certifications will be considered to be mis- force. The resolution also urged Congress to ment of a fee to the board for coverage. demeanors. Copies of the code of conduct protect the rights of all American women and Employees and their dependents of large must be attached to the submitted certifica- provide more effective remedies to victims employers (employers of 200 or more tion. Contractors must comply with mini- of discrimination in the payment of wages persons in the State) are to be covered mum wage, overtime, child labor laws, and on the basis of sex and for other purposes. beginning January 1, 2006. Employees benefits applicable to local, State and na- April 15th symbolizes the day on which and their dependents of medium-sized tional laws of the jurisdiction in which the wages paid to American women catch up to employers (employers of 20 to 199 per- labor is performed. the wages paid to men from the previous sons in the State) are to be covered begin- year. ning January 1, 2007. Small employers Industrial homework. Changes were made are exempt from coverage. “Dependent” in the procedures for the disposition of ar- Hours. The law requiring employers to pro- is defined as the spouse, domestic part- ticles or materials unlawfully manufactured vide meal periods was amended to exempt ner, minor child of a covered enrollee, or at home, and an appeal process was added. employees in the wholesale baking industry child 18 years of age and over who is de- An item unlawfully manufactured at home who are subject to an Industrial Welfare pendent on the enrollee, as specified by may be confiscated by the Division of La- Commission Wage Order and who are cov- the board. bor Standards Enforcement, which will be

Monthly Labor Review January 2004 9 State Labor Laws, 2003

responsible for destroying or disposing of workers from sexual harassment if such ha- bor Transition Plan that includes provisions them. The articles or material must not en- rassment was committed by outside parties that ensure, subject to any requirements al- ter the mainstream of commerce and must in the workplace. ready established pursuant to a collective not be offered for sale. The division is to, No State agency may enter into any con- bargaining agreement, preferential reemploy- by certified mail, give notice of the confis- tract for the acquisition of goods or services ment and transfer rights of displaced employ- cation and the procedure for appealing the in the amount of $100,000 or more with a ees to comparable available employment confiscation to the person whose name and contractor who, in the provision of benefits, with the same employer for a period of no address are affixed to the article or material. discriminates between employees with less than 1 year following the closure of the The notice will state that failure to file a spouses and those with domestic partners, solid waste facility; provisions to provide written notice of appeal with the labor com- or discriminates between the domestic part- displaced employees assistance in finding missioner within 15 days after service of ners and spouses of those employees. comparable employment with other employ- the notice of confiscation will result in the The requirement that each ers; and provisions to ensure compliance destruction or disposition of the confiscated employed by the State, upon his or her ini- with existing statutory requirements for re- article or material. To contest the confisca- tial appointment to a supervisory position, locations, terminations, and mass layoffs that tion, a person must, within 15 days of ser- be provided with a minimum of 80 hours of are applicable to certain employees. vice of the notice, file a written notice of training was amended to specify that the appeal with the labor commissioner. A hear- training is to include training on the subject Displaced workers. A 10-percent bidding ing on the appeal will be held within 30 of employment law relating to persons with preference was established for public transit days. Based on the evidence presented at disabilities. contractors and subcontractors who agree to the hearing, the labor commissioner may retain, for a period of at least 90 days, bus affirm, modify, or dismiss the confiscation, Drug and alcohol testing. The law govern- and rail employees who were employed to and may order the return of none, some, or ing the application for an original or a re- perform essentially the same services by the all of the confiscated articles or material. newal commercial motor carrier permit now previous contractor or subcontractor. If a requires that the application include certifi- successor contractor or subcontractor deter- Equal employment opportunity. The prohi- cation of enrollment in a controlled substance mines that fewer employees are needed than bition on employment discrimination on the and alcohol use and testing program. under the prior contract, qualified employ- basis of sex was expanded by including gen- ees will be retained by seniority within the der in the definition of sex. For this purpose Worker privacy. The law providing for the job classification. The existing contractor, “gender” means an employee or applicant’s confidentiality of peace officer or custodial when required by the awarding agency, must actual sex or the employer’s perception of officer personnel records was amended to provide employment information relating to his or her sex, and includes the employer’s provide that the provisions insuring confi- wage rates, benefits, dates of hire, and job perception of the employee or applicant’s dentiality do not apply to investigations or classifications of employees under the exist- identity, appearance, or behavior, whether proceedings concerning the conduct of peace ing service contract to the awarding author- or not that identity, appearance, or behavior officers or custodial officers, or an agency or ity or a successor contractor. A contractor or is different from that traditionally associated department that employs these officers, con- subcontractor found to have substantially with his or her sex at birth. Employers may ducted by a grand jury, a district attorney’s breached the contract will be ineligible to bid require employees to comply with reason- office, or the Attorney General’s office. on or be awarded a service contract with that able workplace appearance, grooming, and awarding agency for a period of 1 to 3 years. dress standards consistent with State and Private employment agencies. The State Federal law, provided that employees are al- Business and Professions Code, relating to Whistleblowers. The law prohibiting employ- lowed to appear or dress consistently with contractors, was amended. The term con- ers from making, adopting, or enforcing a their gender identity. tractor now includes temporary labor ser- policy that prevents an employee from dis- Language in the Fair Employment and vice agencies that provide short-term em- closing violations of a State or Federal law or Housing Act was clarified to ensure that un- ployees to a licensed contractor for the per- regulation to a government or law enforcement der State law employers may potentially be formance of construction work. Such con- agency, or from retaliating against an employee liable for sexual harassment committed tractors are now required to provide their who makes a disclosure, was amended to ex- against their workers by clients, customers State contractor’s license number to the tem- tend this protection to employees who refuse and other third parties if they knew or should porary labor service agency providing the to participate in an illegal activity or activity have known of the harassment, and failed to short-term employees. The law does not that may result in violations of State or Fed- take immediate and appropriate corrective apply when a properly licensed contractor eral law or regulation. It was also made un- action to stop the harassment. In reviewing exercises supervision and is directly respon- lawful for an employer to retaliate against an cases involving the acts of non-employees, sible for the final results of the work prod- employee for having exercised his or her the extent of the employer’s control and any uct. The law does not require that a qualify- whistleblower rights in any former employ- other legal responsibility that the employer ing individual be present during the supervi- ment. A “whistleblower hotline” is to be es- may have with respect to the conduct of sion of work covered by the contract. tablished in the office of the Attorney General those non-employees will be considered. to receive telephone reports of violations by This change is in response to a 2002 court of Plant closing. The law that requires the op- an employer. Employers are to display a list appeal decision (Salazar v. Diversified erator of a solid waste landfill to submit a of employee’s rights under whistleblower Paratransit, Inc.), which held that the legisla- plan for the closure and post-closure main- laws, including the telephone number of the ture did not intend the State’s Fair Employ- tenance of the landfill to the California Inte- hotline. An employer in violation of the law is ment and Housing Act to hold employers grated Waste Management Board was liable for a civil penalty of up to $10,000 for potentially responsible for protecting their amended to also require submission of a La- each violation.

10 Monthly Labor Review January 2004 Other laws. It was made unlawful for a per- employee for a penalty. If an employer is Equal employment opportunity. The Com- son or entity to enter into a contract or agree- indebted to an employee at his or her time of mission on Human Rights and Opportuni- ment for labor or services with a construc- death, the employer must pay the amount ties and the Permanent Commission on the tion, farm labor, garment, janitorial, or secu- due to the deceased employee’s surviving Status of Women are to provide a minimum rity guard contractor, where the person or spouse. If the employee’s wage claim is dis- of 10 hours of training a year concerning State entity knows or should know that the con- puted by the employer, and the employer and Federal discrimination laws and tech- tract or agreement does not include funds makes legal tender of the amount believed niques for conducting internal investigations sufficient to allow the contractor to comply due, the employer is not liable for a penalty of discrimination complaints to persons des- with all applicable local, State, and Federal unless the employee receives more wages ignated by State agencies, departments, laws or regulations governing the labor or than tendered, in a legal action. If the em- boards or commissions as services to be provided. This does not ap- ployee fails to receive a greater sum in a legal officers and to persons designated by the ply to a person or entity who executes a action, he or she must pay the cost of the Attorney General to represent the entities collective bargaining agreement covering the action and the employer’s attorney fees. before the Commission on Human Rights and workers employed under the contract or A resolution was adopted proclaiming Opportunities and the Equal Employment agreement, or to a person who enters into a April 15th, 2003, to be Equal Pay Day in Opportunity Commission. In addition to contract or agreement for labor or services to Colorado and urging Colorado citizens to rec- completing this training, affirmative action be performed on his or her home residences. ognize the full value of women’s skills and officers are to be responsible for mitigating A rebuttable presumption is established that significant contributions to the labor force, any discriminatory conduct within the the law is not violated if the labor contract or and further encouraging employers to con- agency, department, board or commission; any material change to the labor contract is duct an internal pay to ensure investigating all complaints of discrimination in writing, contained in a single document women are being paid fairly. April 15th sym- made against the State agency, department, and meets certain requirements including bolizes the day on which wages paid to board or commission; and report all findings identifying the person or entity, the labor or American women catch up to the wages paid and recommendations upon the conclusion services to be performed, the number of to men from the previous year. of an investigation to the commissioner or workers to be employed, the total amount of director of the State agency, department, wages to be paid, and when payment is to be Connecticut board or commission for proper action. made. The act concerning alternative dispute Where a person claiming to be aggrieved Wages. As the result of prior legislation, the resolution procedures and complaint repre- by an unlawful employment practice is rep- State minimum wage rate rose to $6.90 per sentation before the Commission on Human resented by private counsel—and not the hour, from $6.70, on January 1, 2003, and to Rights and Opportunities was amended to Department of Fair Employment and Hous- $7.10 per hour on January 1, 2004. provide that the commission may, rather ing—the private counsel will now serve the than must, adopt regulations to establish complaint. In either case, service is to be Family issues. The family and medical leave procedures and standards for alternate dis- completed within 60 days rather than 45 law was amended to require employers to pute resolution. In complaint hearings, it is days as was previously required. give employees the right to use up to 2 now provided that if the Attorney General A resolution was adopted recognizing weeks of accumulated sick leave to attend or the commission counsel determines that March 31st as the anniversary of the birth of to a serious health condition of a son or the interests of the State will not be ad- Cesar Chavez, and calling upon all Califor- daughter, spouse or parent of the employee, versely affected, the attorney for the com- nians to participate in appropriate obser- or for the birth or adoption of a child of the plainant is to present all or part of the case in vances to remember him as a symbol of hope employee. It will be unlawful for an em- support of the complaint. and justice to all persons. ployer to discharge, threaten to discharge, demote, suspend or in any manner discrimi- Worker privacy. No employee assistance Colorado nate against an employee for using, or at- professional, employee or State employee tempting to use, the leave. The law was will be required to disclose any information Wages. The State compensation for employ- also amended to change the method of de- or records concerning or confirming his or ment law was amended to exclude the State termining the eligibility for use of family her voluntary participation in an employee or its agencies from coverage. Additionally, and medical leave. Previously, entitlement assistance program sponsored or authorized wages or compensation now includes vaca- was for a total of 16 workweeks of leave by an employer or the State or any of its tion pay, if an employer provides paid vaca- during any 24-month period, with the 24- agencies. No employee assistance program tions, and bonuses or commissions earned month period beginning with the first day may disclose any information or records con- for labor or services performed, but not sev- of leave taken. Now it will be determined cerning or confirming an employee’s volun- erance pay. Also, employers may make de- using any one of the following methods: 1) tary participation in the program without ductions for the amount of money or value consecutive calendar years; 2) any fixed 24- his or her prior written consent, except where of property that employees failed to pay or month period, such as two consecutive fis- disclosure is necessary to prevent harm to return to an employer as long as the em- cal years or a 24-month period measured the employee or others. ployer pays the balance due within 10 days forward from an employee’s first date of The law guaranteeing employees access of termination of employment. There is no employment; 3) a 24-month period mea- to their personnel files was amended to authorization for deductions below the Fed- sured forward from an employee’s first day specify that “personnel file” includes elec- eral minimum wage. If wage payments are of leave taken under the law; or 4) a rolling tronic mail and facsimiles pertaining to a par- not mailed to the place of receipt within the 24-month period measured backward from ticular employee that has been used by an 10 days, the employer will be liable to the an employee’s first day of leave taken. employer in making a personnel decision.

Monthly Labor Review January 2004 11 State Labor Laws, 2003

District of Columbia Servicemembers Protection Act, employing his or her duties due to illness, injury or a authorities are to adhere to all provisions medical condition; the absence is for the Other laws. A District of Columbia govern- contained in the Federal Uniformed Services purpose of obtaining professional diagno- ment employee who serves in a reserve com- Employment and Reemployment Rights Act sis or treatment for an employee’s medical ponent of the United States Armed Forces with respect to those serving in the State condition; or the absence is for other medi- and who has been or will be called to active National Guard and the United States Armed cal reasons of the employee, such as preg- duty as a result of Operation Enduring Free- Forces. nancy or obtaining a physical examination. dom or Operation Iraqi Freedom, will re- The law concerning the health benefits It does not include any other type of insur- ceive, upon application and approval, an and job protections afforded to members of ance, compensation or disability benefit not amount that equals the difference in com- the State National Guard and the State De- payable from the employer. Employers pensation between the employee’s District partment of Military Affairs was amended. who provide sick leave must permit an em- government basic pay and his or her basic School district employees are now specifi- ployee to use his or her accrued sick leave, military pay. This amount will be paid from cally included as employees of political sub- not to exceed 10 days per year, for pur- the time the employee is called to active duty divisions of the State who may take a leave poses defined in the Act, unless an express until the employee is released from active of absence, not to exceed 30 days, for each provision of a valid collective bargaining duty. emergency or disaster as established by Ex- agreement authorizes the use of more than ecutive order. As such, these employees 10 days for family leave purposes. Florida are protected from being discharged, repri- Public-sector employers are now to pro- Wages. Political subdivisions are barred from manded, or penalized as a result of being ac- vide employees with at least 2 hours of paid establishing, or otherwise requiring an em- tivated for State duty. Additionally, the re- leave during normal business hours to attend ployer to pay a minimum wage, other than a quirement for employees to notify their em- either a mutually-scheduled parent-teacher Federal minimum wage, or applying a Fed- ployers that they wish to continue their conference for the employee’s minor child, eral minimum wage to those wages exempt health insurance coverage upon being called or a mutually-scheduled parent-caregiver from Federal coverage. A minimum wage to active duty has been modified to allow the conference for a preschool-aged child attend- other than the Federal minimum wage can be appropriate military authority to provide au- ing a licensed group childcare center. The established for the employees of the politi- thorization. Consistent with Federal law, employee may take leave for no more than cal subdivision; for the employees of an em- such notice is not required if it is precluded two mutually-scheduled conferences per ployer contracting to provide goods or ser- by military necessity or if such notice is im- child in a calendar year, and travel time may vices for the political subdivision, or for the possible or unreasonable. be included as part of the 2 hours permitted employees of a subcontractor of such an for each conference. The provision of paid employer; or for the employees of an em- Georgia leave may not adversely interfere with the operations of the work unit nor require the ployer receiving a direct tax abatement or Wages. Resolutions were adopted declaring applicable agency to incur additional human subsidy from the political subdivision, as a April 15, 2003, to be Equal Pay Day and resources or overtime costs. condition of the direct tax abatement or sub- urging the citizens of Georgia to recognize Legislation was enacted to assist victims sidy. A Federally authorized and recognized the full value of women’s skills and signifi- of domestic or sexual violence and stalking. tribal government may establish a minimum cant contributions to the labor force and en- Employers with 50 or more employees must wage in excess of the Federal minimum wage couraging businesses to conduct an internal allow employees to take up to 30 days of for persons employed within any territory pay evaluation to ensure that women are unpaid victim leave per calendar year. Em- over which the tribe has jurisdiction. being paid fairly. April 15th symbolizes the ployers with 49 or fewer employees must day on which the wages paid to American allow employees to take up to 5 days of Equal employment opportunity. An amend- women catch up to the wages paid to men unpaid victim leave per calendar year. Em- ment to the Civil Rights Act authorizes the from the previous year. Attorney General to bring a civil action for ployees are entitled to the leave provided it damages, injunctive relief, civil penalties of Hawaii is for the purpose of 1) seeking medical at- up to $10,000 per violation, and such other tention; 2) obtaining services from a victim relief as may be appropriate under State law, Wages. As the result of prior legislation, the services organization; 3) obtaining psycho- where the Attorney General has reasonable State minimum wage rate rose from $5.75 logical or other counseling; 4) temporarily or cause to believe that any person or group per hour to $6.25 on January 1, 2003. permanently relocating; or 5) taking legal ac- either has engaged in a pattern or practice of tion. An excused absence may be taken when prohibited discrimination, or has been dis- Family issues. The State Family and Medi- the domestic abuse or sexual violence is criminated against and the discrimination cal Leave Act was amended by revising the against an employee or the employee’s mi- raises an issue of great public interest. definition of “employers” and by defining nor child. Employers may require employ- “sick leave” and specifying how it can be ees to report their status once a week and Worker privacy. Acts relating to a public used. “Employer” now includes the State may require employees to provide a medical records exemption for State, county, and mu- and any of its political subdivisions or in- and/or legal certification prior to return to nicipal employee assistance program records strumentalities, reversing the exclusion of work. Upon returning, an employee shall were amended to provide that an employee’s public-sector employees enacted in 2000 return to the same position or one of compa- personal identifying information contained that became effective on July 1, 2002. “Sick rable status and pay with no loss of accumu- in employee assistance program records is leave” is an accrued increment of compen- lated service credits and privileges. Employ- confidential and exempt from disclosure. sated leave provided by an employer for ees are to exhaust other paid and unpaid leave employees’ use when: the employee is benefits before victim leave benefits may be Other laws. As part of a Florida Uniformed physically or mentally unable to perform applied.

12 Monthly Labor Review January 2004 Child labor. The Child Labor Law was reduction that is available to private sector by the Department of Labor or a public body amended in order to prohibit minors under employers. is to be rendered within 30 days after the the age of 18 from working in adult enter- conclusion of the hearing. tainment. Additionally, the hours of work Department of labor. An Executive order Executive Order No. 13 was issued re- restrictions of minors from 14 to 16 years of was issued renaming the Disability Determi- quiring State agencies, on a project-by- age were modified so that these minors may nations Unit the Disability Determinations project basis, to consider a project labor not work: 1) more than 18 hours during a Service and transferring it from the Execu- agreement for a public works project where school week nor more than 40 hours in a tive Office of the Governor to the Idaho De- the agency determines that such an agree- non-school week; 2) more than 3 hours on a partment of Labor. ment advances the State’s interests of cost, school day nor more than 8 hours on a non- efficiency, quality, safety, timeliness, skilled school day. Previously, the combination of Other laws. A Voluntary Contributions Act labor force, labor stability or the State’s hours of work and hours in school of a minor was adopted. This law requires that labor policy to advance minority- and women- employed outside school hours could not organizations that engage in political activi- owned businesses and minority and female exceed 10 hours per day. To accommodate ties keep a segregated fund for all political employment. Project labor agreements are a year-round school schedules, minors may contributions. Union dues are not to be used form of pre-hire collective bargaining agree- now work between 6:00 a.m. and 9:00 p.m. for political activities, transferred to the fund, ment covering all terms and conditions of during any authorized school rather or intermingled in any way with fund mon- employment on a specific project. Any de- than from June 1 through the day before La- eys. Employee contributions to the fund cision by a State agency to use a project bor Day as before. must be on a voluntary basis without fear of agreement is to be supported by a written reprisal and are to be made directly by the publicly disclosed finding setting forth the Other laws. The Governor or mayor may donor. Payroll withholding of funds to be justification for its use. Criteria for project grant a State or county employee who is a used for political purposes is prohibited. agreements include procedures for immedi- certified American Red Cross disaster vol- ate and binding settlement of jurisdictional unteer up to 30 days paid to Illinois disputes and grievances, no-strike provi- perform disaster relief services for the sions, lowest qualified responsible bidder American Red Cross when a disaster has Wages. New legislation increased the State language, and a guarantee of a reliable source been designated as level III or higher by minimum wage rate for employees 18 years of skilled and experienced labor. American Red Cross regulations; officially of age or older from $5.15 per hour to $5.50 The prevailing wage law was amended to declared by the President of the United per hour on January 1, 2004, with a further expand coverage by removing the “for pub- States; or declared a state of emergency by increase to $6.50 per hour scheduled for lic use” phrase from the definition of cov- the Governor. The employee must have January 1, 2005. Employees under 18 years ered public works projects. The previous prior authorization from the Governor or of age may be paid up to 50 cents less than wording exempted some public works mayor, and the leave may not impose an the regular rate. A provision that the wage projects from prevailing wage obligations undue hardship on State or county opera- rate paid by employers be not less than the because the projects were not developed es- tions. Employees granted leave will be paid Federal hourly minimum wage rate was sentially for public use. Amendments also at their regular rates of pay, without loss of eliminated. specify that the law will cover all projects seniority, vacation, sick leave, or earned over- Among changes in the prevailing wage financed in whole or in part with funds from time accumulation. law, prevailing wage rate requirements are the Fund for Illinois’ Future program and now to be inserted in project specifications acts designed to finance school and trans- Idaho as well as in public works contracts. It will portation infrastructure improvements. also be mandatory for each contractor, sub- The State Procurement Code was Agriculture. The Idaho Agricultural Labor contractor, and lower-tiered subcontractor to amended to expand application of the pre- Act enacted in 1972 was repealed. This act insert these requirements into the contracts vailing wage requirement provisions to now created an Agricultural Labor Board that was they let. The contractor and each subcon- include building and grounds services, site never used and was not necessary because of tractor or the officer of the public body in technician services, and natural resources ser- more recent State and Federal laws address- charge of the project is to make and keep, for vices. The prohibition against considering ing agricultural labor concerns. at least 3 years, records of the name, ad- State employee collective bargaining agree- dress, telephone number when available, so- ments when determining the prevailing wage Drug and alcohol testing. The Employer cial security number and occupation of all rate was eliminated. Alcohol and Drug-Free Workplace Act was laborers, workers and mechanics employed The Illinois Renewable Fuels Develop- amended to extend coverage to public sec- by them on the public works project. In ment Program Act was adopted, establishing tor employers. The law specifies that it is addition to actual hourly wages paid, records a $15 million grant program providing finan- lawful to test employees or prospective em- are now to show the hours worked each day cial assistance for constructing or modifying ployees for the presence of drugs or alcohol by each employee. Every employer, upon plants capable of annually producing at least as a condition of hiring or continued em- request, is to furnish the Director with a 30 million gallons of renewable fuels such as ployment if the employer has a written test- sworn statement of the accuracy of the ethanol and bio-diesel fuel. The law requires ing policy. The State of Idaho or any politi- records. Objections to a rate determination that projects receiving such funds be subject cal subdivision that conducts drug and alco- may be made within 30 days after the De- to the prevailing wage law and enter into hol testing of all those employees and ap- partment of labor has published a prevailing project labor agreements. Project labor agree- plicants for whom such testing is not con- wage on its official Web site. A ments are to include provisions establishing stitutionally prohibited will qualify for the hearing is to be held within 45 days after the the minimum hourly wage, benefits and other workers’ compensation insurance premium objection is filed, and a final determination compensation for each class of labor organi-

Monthly Labor Review January 2004 13 State Labor Laws, 2003

zation employee, and provisions establish- is to provide the employer with at least 48 aggrieved by any conduct or action or inac- ing that no strike or disputes will be engaged hours’ advance notice of his or her intention tion of the State that would constitute a vio- in by the labor organization employees. to take the leave. The employer may require lation of the Federal Age Discrimination Act The prevailing wage law was amended to the employee to provide certification of the of 1967, the Federal Family and Medical cover all projects financed in whole or in part need for the leave. Upon returning, an em- Leave Act, the Federal Americans with Dis- with funds from the Department of Com- ployee is to be restored to the same or an abilities Act of 1990, or Title VII of the Civil merce and Community Affairs under the Illi- equivalent position with no loss of any ac- Rights Act of 1964 may bring a civil action nois Renewable Fuels Development Program crued employment benefit. Employment under that Act against the State. In addition, Act for which there is no project labor agree- discrimination is prohibited against an indi- an employee of the State who is aggrieved ment. The law also added provisions speci- vidual because he or she is perceived to be a by any conduct or action or inaction of the fying that the wage for a tradesman perform- victim of domestic or sexual violence. State that would constitute a violation of the ing maintenance is equivalent to that of a Federal Fair Labor Standards Act of 1938 tradesman engaged in construction, and mak- Equal employment opportunity. The State may bring a civil action under that Act against ing it mandatory to post the prevailing wage enacted the Equal Pay Act of 2003. Under the State. rates for each craft or type of worker or me- the Act no employer with four or more em- A resolution was adopted creating a 10- chanic needed on the project at the project ployees may discriminate between employ- member Commission on Opportunity in site at a location that is easily accessible to ees, in the matter of the wage rate paid, on State Public Construction to undertake a the workers engaged on the project. the basis of sex for the same or substantially comprehensive study to determine the exist- similar work on the performance of jobs that ence and the extent of racial and gender dis- Family issues. The Department of Com- require equal skill, effort, and responsibility, crimination on public construction contracts merce and Community Affairs may estab- performed under similar working conditions in the State. This determination shall be ac- lish a family-friendly workplace initiative. unless payment is based upon seniority, complished via public hearings and social- The Department may develop a program to merit, production quality or quantity, or a scientific research. If such discrimination is annually collect information regarding the differential factor other than sex. Employ- discovered, the Commission is to develop State’s private eligible employers providing ers may not interfere with the employee’s policy recommendations to remedy the dis- the most family-friendly benefits to their exercise of his or her rights under the Act, crimination. If the Commission determines employees. The same program may be es- discharge the employee because the em- that there are racial and gender-neutral barri- tablished for public employers. Employers ployee filed a charge, has given or is about to ers to minority and female participation on chosen by the Department may be recog- give information in a proceeding, or has tes- State public construction projects, the Com- nized with annual “family-friendly work- tified or is about to testify in such a proceed- mission is to develop policy recommenda- place” awards and a Statewide information ing. Employers found in violation will be tions to reduce the barriers to full participa- and advertising campaign publicizing the required to pay the wage differential to the tion. The Commission will have investiga- employers’ awards, their contributions to affected employees and pay legal costs and tory powers and is to deliver a report of its family-friendly childcare, and the methods damages. Violators may also be subject to a findings, the transcripts of its public hear- they used to improve the dependent care ex- civil fine of up to $2,500 per violation. No- ings, and its research to the Governor and periences of their employees’ families. tices regarding this Act are to be posted in a the General Assembly by June 30, 2004. A Victims’ Economic Security and Safety conspicuous place on the premises of the Act was enacted. Under this act, the State, employer where employee notices are cus- Private employment agencies. The Day and any unit of local government or school board, tomarily posted. Temporary Labor Services Act was amended or any employer of 50 or more employees The Illinois Civil Rights Act of 2003 was to provide that third-party employers are must allow an employee who is a victim of enacted. This act prohibits any unit of State, prohibited from entering into contracts for domestic or sexual violence or who has a county, or local government from excluding a the employment of day or temporary labor- family or household member who is a victim person from participation in, denying a per- ers with any person or entity not registered to take up to 12 workweeks of unpaid leave son the benefits of, or subjecting a person to as a day and temporary labor service agency. during any 12-month period and to maintain discrimination under any program or activity The Department of Labor was authorized to health benefits during the leave. Leave may on the grounds of his or her race, color, or inspect contracts for the employment of all be taken to: (A) seek medical attention for, national origin, and from using criteria or meth- day or temporary laborers entered into by a or recover from, physical or psychological ods of administration that have the effect of third-party employer if the department has injuries caused by the domestic or sexual vio- subjecting individuals to such discrimination. received a complaint indicating that the third lence; (B) obtain services from a victim ser- Any party aggrieved by a violation may bring party employer may have contracted with vices organization; (C) obtain psychological a lawsuit, in a State circuit court, against the an unregistered agency. Upon request, the or other counseling; (D) participate in safety offending unit of government. department will provide to a third-party planning, temporarily or permanently relo- It is now a civil rights violation for an employer a list of entities registered as day cating, or taking other actions to increase the employer to impose a restriction that has and temporary labor service agencies. This safety of the employee or the employee’s the effect of prohibiting a language from be- list will also be available on the Internet. family or household member from future ing spoken by an employee in communica- The ban on the employment of any pro- domestic or sexual violence, or to ensure eco- tions that are unrelated to the employee’s fessional strikebreaker in the place of an nomic security; or (E) seek legal assistance duties. “Language” is defined as being a employee, whose work has ceased as a di- or remedies including preparing for or par- person’s native tongue. rect consequence of a lockout or strike, was ticipating in any civil or criminal legal pro- The State Lawsuit Immunity Act was amended to also prohibit an employer from ceeding related to or derived from domestic amended to provide that a current, former or knowingly contracting with a day and tem- or sexual violence. If possible, the employee prospective employee of the State who is porary labor service agency to provide a

14 Monthly Labor Review January 2004 replacement for the employee. A day and Other laws. Executive Order No. 6 was is- entities throughout the State to celebrate temporary labor service agency may not sued providing that any full-time employee his birthday. send any such laborer to any place where a of the State under the control of the Gover- strike, a lockout, or other labor trouble ex- nor, who is a member of any reserve compo- Indiana ists. A day or temporary laborer who had nent of the United States Armed Forces, in- Child labor. The child labor law was been assigned to work for the employer at cluding but not limited to the Illinois Army amended to make it unlawful to permit a the time that the strike or lockout began or Air National Guard, who is mobilized to child who is under age 18 to work after 10 may continue to be employed. active duty in response to the war with Iraq p.m. and before 6 a.m. in an establishment or other potential threats to national secu- that is open to the public, unless another rity, will continue to receive his or her regu- employee at least 18 years of age also works Whistleblowers. A Whistleblower Act ap- lar compensation as a State employee, plus in the establishment during the same hours plicable to private sector employers was any health insurance and other benefits he or as the child. Violation will be considered to enacted. It provides that an employer may she is currently receiving, minus the amount be a hazardous occupation violation subject not make, adopt, or enforce any rule, regula- of his or her base pay for military activities. to a warning letter for any violations found tion, or policy preventing an employee from Legislation similar to Executive Order during an initial inspection; a $100 fine per disclosing information to a government or No. 6 was enacted providing that any full- instance for each violation identified in a law enforcement agency if the employee has time employee of the State, other than an subsequent inspection; $200 per instance reasonable cause to believe that the informa- independent contractor, who is a member of for a third violation; and $400 per instance tion discloses a violation of a State or Fed- the Illinois National Guard or a reserve com- for a fourth or subsequent violation that eral law, rule, or regulation. An employer ponent of the United States Armed Forces occurs not more than 2 years after a prior may not retaliate against an employee for or the Illinois State Militia and who is mobi- violation. Another amendment changes the disclosing such information or for refusing lized to active duty must continue during the rest break requirement for children who to participate in an activity that would re- period of active duty to receive his or her work at least 6 consecutive hours—from a sult in a violation of a State or Federal law, benefits and regular compensation as a State single break of at least 30 minutes to one or rule, or regulation. Violation of the law is a employee, minus an amount equal to his or two breaks totaling at least 30 minutes with Class A misdemeanor. If an employer takes her military active duty base pay. the time period specified for making the any action against an employee in violation Coverage of the Military Leave of Ab- break available eliminated. of the act, the employee may bring a civil sence Act was expanded to now include em- action against the employer for relief, includ- ployees of units of local government and Equal employment opportunity. The Gover- ing but not limited to reinstatement, back school districts in addition to employees of nor issued an Executive order establishing a pay, compensation for damages, litigation the State as before. The law now provides Native American Indian Affairs Commission costs, expert witness fees, and reasonable that any full-time employee of the State, a to study issues common to Native American attorney’s fees. The act does not apply to unit of local government, or a school district, Indian residents of Indiana in the areas of disclosures that would constitute a violation other than an independent contractor, who employment, education, civil rights, health, of the attorney-client privilege. is a member of the Armed Forces will be and housing. The commission may make Executive Order No. 4 was issued speci- granted leave from his or her public employ- recommendations to appropriate Federal, fying that any officer, employee or appoin- ment for any period actively spent in mili- State, and local government agencies con- tee of any State agency is banned from retali- tary service. Home rule units are barred from cerning issues including measures to stimu- ating against, attempting to retaliate against, regulating their employees in a manner in- late job skill training and related workforce or in any manner interfering with a consistent with the law. development, including initiatives to assist whistleblower for reasons arising out of his A State Prohibition of Goods from Forced employers to overcome communication and or her activities as defined in the State Whistle Labor Act was enacted. It provides that each cultural differences, and programs to encour- Blower Protection Act. Any officer, em- contract entered into by a State agency for age the growth and support of Native Ameri- ployee or appointee of any agency who the procurement of equipment, materials, or can-owned businesses. The commission is knowingly violates the provisions of the supplies must specify that foreign-made to report on its activities to the Governor at Executive order will be subject to disciplin- goods produced under the contract were not least annually. ary action, including but not limited to dis- produced in whole or in part by forced, con- charge. vict, or indentured labor. A contractor in vio- Worker privacy. The law relating to public The Whistleblower Reward and Protec- lation may be subject to a penalty of the records was amended to provide that the tion Act was amended to provide that the greater of $1,000 or 20 percent of the value factual basis of a disciplinary action in Attorney General may, instead of shall, del- of the equipment, materials, or supplies; the which final action has been taken resulting egate the authority to issue subpoenas, sub- contract may be voided; and the contractor in the , demotion, or discharge ject to conditions as the Attorney General may be suspended from bidding on a State of a public employee is a public record. deems appropriate. Additionally, the per- contract for up to 360 days. Sanctions may Another change allows a governing body in son issuing the subpoena shall advise that be waived if it is determined that the con- an executive session to receive information the person receiving the subpoena has 20 tractor acted in good faith. about misconduct and discuss the status of days from the date of service or up until the It was made unlawful for a person to a school bus driver, who is an independent return date specified in the demand, which- knowingly use a false academic degree for contractor, before the governing body makes ever date is earlier, to move, modify, or set the purpose of obtaining employment. a determination. aside the subpoena. Finally, the amendment A resolution was adopted recognizing removed all language concerning service of March 31st as Cesar Chavez Day in Illi- Other laws. A law was enacted extending notice in foreign countries. nois and encouraging public and private active duty military rights and protections

Monthly Labor Review January 2004 15 State Labor Laws, 2003

to members of the State National Guard or- nor issued an Executive order directing the before the next regular payday or no later dered to training or duty under Federal law head of each executive branch State agency than 15 days following the date of resigna- or ordered by the Governor to State active under the jurisdiction of the Governor to 1) tion, whichever occurs first, was amended to duty for 30 or more consecutive days. The adopt a policy statement prohibiting sexual specify that the payday refers to the next law specifies that the provisions of the Fed- harassment and distribute the policy state- regular payday for the pay cycle during eral Soldiers and Sailors Civil Relief Act and ment throughout the agency; 2) provide which the employee was working at the time the Federal Uniformed Services Employment training that sensitizes managers, supervi- of separation. and Reemployment Rights Act apply when sors, and employees on the subject of sexual A resolution was adopted proclaiming members of the State Guard are called up in harassment; 3) develop and provide employ- Tuesday, April 15, 2003, as Equal Pay Day the above circumstances. ees with proper procedures for expressing in Louisiana and urging residents of the State complaints or concerns on sexual harass- to recognize the full value of women’s skills Iowa ment, including information on the proce- and significant contributions to the labor dures for filing complaints with enforcement force. Businesses were urged to conduct an Wages. The law prescribing when unclaimed agencies when requested; 4) develop and internal pay evaluation to ensure that women intangible personal property is presumed to implement an internal mechanism to assure are being paid fairly. April 15th symbolizes be abandoned was amended to specify that prompt, confidential, and appropriate han- the day on which the wages paid to Ameri- unpaid wages, including wages represented dling of sexual harassment complaints within can women catch up to the wages paid to by payroll checks or other compensation for the State agency, which includes the enforce- men from the previous year. personal services owing in the ordinary ment of appropriate disciplinary action; and course of the holder’s business that remain 5) submit the policy statement and internal Overtime limits. A resolution was adopted unclaimed by the owner for more than 1 year complaint and investigation mechanism pro- establishing a Mandatory Overtime Study after becoming payable, are presumed to be cedures to the Secretary of Administration Committee to assess the extent of registered abandoned. for review. nurse mandatory overtime use in the State and to work with the Nursing Supply and Other laws. State employees, other than Inmate labor. The law related to the charging Demand Commission to make specific rec- those covered under a collective bargaining of inmate fees in order to defray the mainte- ommendations to the legislature by March agreement that provides otherwise, will now nance costs of county jails was amended by 1, 2004, regarding committee findings and be granted paid leaves of absence of up to 5 raising the allowable fee to a maximum of $20 any recommended legislation. workdays to serve as a bone marrow donor per day. This fee will be required of any in- and of up to 30 workdays to serve as a vas- mate who participates in a work release or job cular organ donor if the employee provides Child labor. The child labor law was training program for which the inmate receives amended to repeal an exemption for em- written verification from his or her physi- compensation or a subsistence allowance. cian or the hospital involved that the em- ployment or training related to curricu- lum while attending a business or voca- ployee will serve as such a donor. Employ- Kentucky ees granted such leaves of absence will not tional-technical school, and to revise pro- suffer loss of seniority, pay, vacation time, Inmate labor. Among provisions of a law visions relating to employment certifi- personal days, sick leave, insurance and enacted regarding work by State prisoners cates and permissible hours of employ- health coverage benefits or earned overtime on public agency projects, it was specified ment. The employer obligation to keep accumulation. In addition, grants from the that the labor of State inmates is not to be on file an employment certificate or work anatomical gift and transplantation fund, used on any construction, building, or build- permit for each minor no longer applies may now be available upon application to ing maintenance project outside of the prison to work permits. The requirement that living organ donors or recipients, or their le- where use of such labor would reduce skilled certificates be provided in triplicate was gal representatives. employment opportunities for citizens of the eliminated and replaced with one that the Commonwealth. school superintendent complete and elec- Kansas tronically submit—the Employment Cer- Other laws. A Kentucky National Guard and tificate Form—found on the Department Wages. The definition of “employer” in the Reserve Employers’ Council was created to of Labor’s Web site, with the original cer- wage payment act was amended to now in- advise public and private sector employers of tificate being signed by the minor and the clude limited liability companies or other the importance of supporting the National issuing authority and given to the em- organizations employing any person. Addi- Guard and U.S. military reserves by provid- ployer. The requirement for different col- tionally, any officer, manager, major share- ing employee members with time off for train- ored certificates issued based upon the age holder or other person who has charge of the ing, and with job security during times of mo- of the applicant was repealed. The re- affairs of an employer, and who knowingly bilization. The council may recommend solu- quirement that minors under age 16 not be permits the employer to engage in violations tions to employment problems encountered employed before 7 a.m. or after 7 p.m., or of required pay periods, or timely payment by members of the National Guard or military after 9 p.m. from June 1 through Labor when the employee is discharged, may be reserves who are mobilized, and it may offer Day, was revised to now prohibit minors deemed the employer for purposes of this proposed policy or statutory changes to deal who have not graduated from high school act. This language replaces a provision that with those problems. from working after 10 p.m. on any day had deemed the corporation or any officer or prior to a day during which school is in agent having the management of the corpora- Louisiana session, or after midnight on any day prior tion to be the employer. to a day during which school is not in ses- Wages. The law requiring that an employee sion. Minors under the age of 16 who Equal employment opportunity. The Gover- who resigns be paid his or her wages on or have not graduated from high school are

16 Monthly Labor Review January 2004 prohibited from working before 7 a.m. or Other laws. The prohibition against dis- willful violation, the action must then be after 7 p.m. on any day prior to a day charging an employee who is called to serve brought within 3 years. during which school is in session or after or who is serving on jury duty was amended A resolution was adopted pertaining to 9 p.m. on any day prior to a day during to also prohibit any other adverse employ- the legislative review of the proposed Rules which school is not in session. No minor ment action. The protection was modified Governing Alternative Methods of Payment under the age of 16 who has not graduated to apply if the employee notifies his or her of Overtime for Certain Drivers and Driver’s from high school is to be employed more employer of a summons within a reasonable Helpers, a substantive rule of the Depart- than 40 hours in any one week. period of time after its receipt and prior to ment of Labor, Bureau of Labor Statistics his or her appearance for jury duty. A which was submitted to the legislature for Worker privacy. Any employer who has Lengthy Trial Fund is to be established to review as required by law. The resolution conducted a of an em- provide full or partial wage replacement of stated that the Department of Labor was to ployee or prospective employee after hav- up to $300 per day to jurors who serve for ask the Attorney General to provide a legal ing obtained his or her written consent or at more than 10 days on civil and criminal petit opinion as to the ability of the Department the request of the owner or operator of any juries if conviction of the alleged crime car- of Labor to take into account hours worked facility where the employer performs or may ries a sentence of 20 years or more at hard outside of the State when determining perform all or part of its work will be im- labor, and whose employers pay less than whether overtime pay is required for work mune from civil liability for claims arising full regular wages during the jury service. within the State. The Department of Labor out of the disclosure of the background in- After military leave with pay has been was to meet in September 2003 with the formation obtained. The limitation of liabil- exhausted, any State employee called to ac- Joint Standing Committee on Labor in order ity will extend to all claims of the employee tive duty service in the uniformed services to report on the Attorney General’s opinion based upon a failure to hire, wrongful termi- of the United States pursuant to a declara- and the department’s response to the opin- nation, and invasion of privacy, as well as all tion of war, congressional authorization, or ion including any proposed changes to the claims of any owner, operator, or any third presidential proclamation pursuant to the rule. person for claims of negligent hiring or negli- War Powers Resolution, or national emer- The prevailing wage law was amended to gent retention. gency whose military base pay is less than raise the dollar threshold amount for public The law governing public records was his or her State base pay must be paid the works construction contracts let by the State amended to specify that all medical records, difference between the military base pay and from $10,000 to $50,000. claim forms, insurance applications, re- the State base pay in his or her regular posi- Contractors and subcontractors in charge quests for the payment of benefits, and all tion. The payment is to be made in the same of the construction of a public work must other health records of public employees, frequency and manner as the employee’s now keep accurate records showing the public officials, and their dependents in the regular State pay. Any employee receiving names and occupations and wages and ben- personnel records of any public body will the pay differential is to provide to his or her efits of all independent contractors working be confidential. employer all such documentation appropri- under contract with them as well as all la- The law governing public records was ate to ensure that the amount of the pay- borers, workers and mechanics employed amended to add the name and account num- ment is accurately calculated. by them as before. A copy of each such ber of any financial institution to which the A resolution was adopted urging the State record is to be filed monthly with the public public employee’s wages or salary are di- Department of Labor to review its operation authority that let the contract. The filed rectly deposited by an electronic direct de- of the incumbent worker training program in record is a public record except that the au- posit payroll system or other direct deposit rural areas, in that the current process for thority must adopt rules to protect the pri- payroll system to the list of items in the applying for admission into the program is vacy of personal information such as Social personnel records of a public employee body tedious and is difficult for companies in rural Security numbers and taxpayer identifica- that will be confidential. areas. tion numbers.

Private employment agencies. The employ- Maine Child labor. The section of the child labor ment agency regulatory law was amended law regarding prohibited hazardous employ- to exempt employer-fee-paid employment Wages. As the result of prior legislation, the ment for minors under age 18 was amended services from testing, licensing, and bond- State minimum wage rate rose from $5.75 to to provide that the Director of the Bureau of ing requirements. $6.25 per hour on January 1, 2003. Labor Standards is to adopt rules prohibit- A law was enacted which permits, to the ing any such minor from working in confined Inmate labor. The ban on participation in extent permitted under the Federal Fair La- spaces or at a designated height when regula- work release programs by persons convicted bor Standards Act, public employees of the tions of the Federal Occupational Safety and of production, distribution or possession executive or judicial branch of the State to be Health Administration require special pre- with intent to distribute cocaine or marijuana awarded compensatory time in lieu of over- cautions or procedures for such work. The was amended to permit participation, during time pay. Additionally, limitations have been rules must provide exceptions to the prohi- the last 6 months of their terms, by any per- placed on the recovery of unpaid overtime bition in specific exceptional circumstances, son convicted of distribution or possession wages for executive or judicial branch em- such as work required for public safety. with intent to distribute cocaine where the ployees. In actions to recover such wages, offense involved less than 28 grams of co- the judgment or award is limited to the com- Worker privacy. The law providing for caine or by any person convicted of distri- pensation due without liquidated damages employee access to their personnel files bution or possession with intent to distrib- or attorney’s fees. Such actions must be was amended to require that, in each cal- ute marijuana where the offense involved less brought within 2 years after the cause of ac- endar year, the employer must provide, than one pound of marijuana. tion accrued. When the cause arises from a at no cost to the employee, one copy of

Monthly Labor Review January 2004 17 State Labor Laws, 2003

the entire personnel file upon request by employee’s active duty base salary paid by Minnesota the employee or former employee, and, the Federal government and the employee’s upon request, one copy of all material State base salary or direct wages. The com- Child labor. A minor at least 11 and less than added to the file after the copy of the en- pensation provided may not exceed an 14 years of age will be exempt from the mini- tire file was provided. The cost of copy- employee’s State base salary or direct mum age provisions of the child labor law if ing any other material requested during wages. An eligible employee must elect to employed as a youth athletic program ref- that calendar year will be paid by the per- use either the military administrative leave eree, umpire, or official for an age bracket son requesting the copy. or other available paid leave to which he or younger than the minor’s own age if an adult she is entitled. representing the State or local athletic pro- gram is on the premises at which the event is Maryland Michigan occurring and a person responsible for the Wages. The Advisory Committee on the program has a written acknowledgment Wage and Hour Law and the Advisory Coun- Wages. The Unclaimed Property Act was signed by the minor’s parent or guardian con- cil on Prevailing Wage Rates were abolished. amended concerning the treatment of unpaid senting to the minor’s employment. An employer who withholds an wages. The provision that unpaid wages A similar law was enacted exempting chil- employee’s dues to an employee member- which are unclaimed by the owner for more dren at least 11 and less than 14 years of age ship entity must now also collect any con- than 1 year after becoming payable are pre- from the minimum age provisions of the tributions specified by the employee for sumed to be abandoned will now apply only child labor law for employment as assistant one or more affiliated political action com- to unpaid wages greater than $50. Unclaimed referees in youth soccer athletic program mittees of the employee membership en- unpaid wages of $50 or less are no longer events in which the participants are under tity, and then transmit the contributions to subject to the act. 14 years of age. An adult representing the that entity. The Governor issued an Executive order State or local athletic program must be on which stipulates that the Department of the premises where the event is occurring, Drug and alcohol testing. Saliva derived Management and Budget may debar a ven- and a person responsible for the athletic pro- from the human body was added to the list dor from consideration for the award of a gram possesses a written acknowledgment of specimens that may be used for job-re- contract for the provision of goods or ser- signed by the minor’s parent or guardian con- lated substance abuse testing. The others vices to the State, or suspend the procure- senting to the minor’s employment as an as- that may be used are blood, urine, and hair. ment of goods or services from a vendor if, sistant soccer referee. within the past 3 years, an officer of the Private employment agencies. Licensing and vendor, or an owner of a 25-percent or greater Private employment agencies. The law regu- regulation of employment agencies and em- interest in the vendor has been convicted of lating and requiring licensing of entertainment ployment counselors were eliminated. An an offense, violated any State or Federal law, agencies was repealed. employment agency will now be required to as determined by a court or an administra- submit a $7,000 penal bond to the Commis- tive proceeding, which, in the opinion of the Other laws. It was specified that civil ac- sioner of Labor and Industry. A list of pro- Department, indicates that the vendor is un- tions against the State may be brought in hibited employment agency activities in- able to perform responsibly or which reflects Federal court by an employee, former em- cludes knowingly referring a client to a job if a lack of integrity that could negatively im- ployee, or prospective employee of the State any condition of the job violates any law; pact or reflect upon the State or has failed or who is aggrieved by the State’s violation of referring a client to an establishment where a refused to provide requested information. An the Federal Age Discrimination Act of 1967, labor dispute exists; advertising for a job for offense or violation of this statute may in- the Federal Family and Medical Leave Act, which there is no order by an employer on clude, but is not limited to laws relating to or the Federal Americans with Disabilities file; charging a client a registration fee or col- prevailing wages on State projects, the pay- Act of 1990. An employee of the State who lecting in advance from a client a payment ment of wages and fringe benefits, and occu- is aggrieved by the State’s violation of the for service to be performed for the client to pational safety and health. Federal Fair Labor Standards Act of 1938 obtain employment; and publishing any may also bring a civil action in Federal court. false, fraudulent, or misleading information Department of labor. The Governor issued Each State agency must—and cities, or promise. Nurse registries will be subject Executive Order Number 18 changing the counties, towns, school districts, and other to the law. name of the Department of Consumer and political subdivisions may—pay to each eli- Industry Services to the Department of La- gible member of the national guard or other Other laws. The Commissioner of Labor bor and Economic Growth. A new Wage and reserve component of the armed forces of and Industry was authorized to charge a Hour Division is created within the depart- the United States an amount equal to the fee to cover the cost of providing media- ment headed by a Wage and Hour Adminis- difference between the member’s basic ac- tion services. trator. Any authority, powers, functions, tive duty military salary and the salary the The law relating to leave of absence for duties and responsibilities of the former member would be paid in his or her regular State employees who are members of the Wage and Hour Division of the Department job, including any adjustments the member organized militia and who are ordered to ac- of Consumer and Industry Services, trans- would have received if not on leave of ab- tive duty was amended to provide for mili- ferred to the Bureau of Worker’s and Unem- sence. Payments must not extend beyond 4 tary administrative leave. An eligible State ployment Compensation under an Executive years from the date the employee reported employee is entitled to military administra- order in 2002, are transferred to the new for active service, plus any additional time tive leave in an amount sufficient to com- Wage and Hour Division, including, but not the employee may be legally required to pensate the employee, during each pay pe- limited to, responsibility for the minimum serve. State agencies must continue the riod for which he or she is eligible for the wage, wage payment, prevailing wage, and employee’s enrollment in health and dental leave, for the difference between the youth employment laws. coverage, and the employer contribution to-

18 Monthly Labor Review January 2004 ward that coverage, until the employee is as the person providing the service must be Employee leasing. The professional em- covered by health and dental coverage pro- employed directly by a family member and ployer organizations and groups licensing vided by the armed forces. The agency must not by a third-party provider. law was amended to exempt from coverage also permit the employee to continue par- The prevailing wage law was amended to arrangements by healthcare facilities to pro- ticipating in any pre-tax account in which require the Department of Labor and Indus- vide their own employees to perform ser- the employee participated when he or she try to include work performed by licensed vices at and/or on behalf of another reported for active service, to the extent of electrical contractors and licensed master healthcare facility or at and on behalf of a employee pay available for that purpose. plumbers in the wage survey used to deter- private office of physicians, dentists, or Political subdivisions have total discretion mine the standard prevailing wage rate for other licensed and regulated physical or regarding employee benefit continuation. public works construction contracts. mental healthcare workers. The prevailing wage law was amended Mississippi to provide an exception from the require- Preference. The law providing for a public ment to pay standard prevailing wages for employment hiring preference for eligible School attendance. The Compulsory School an employer who, as a nonprofit organiza- former or current members of the United Attendance Law was amended to apply to tion providing vocational rehabilitation, per- States Armed Forces was amended to extend any child who has attained or will attain the forms a public works contract for non-con- the hiring preference to former or current age of 5 years on or before September 1 and struction services and who employs an in- members of the Montana army or air na- has enrolled in a full-day public school kin- dividual whose earning capacity is impaired tional guard who have satisfactorily com- dergarten program. Provided, however, that by a mental, emotional, or physical disabil- pleted a minimum of 6 years service in the the parent or guardian of any child enrolled ity if the employer conforms with the Fed- Armed Forces, the last 3 years of which have in a full-day public school kindergarten pro- eral Fair Labor Standards Act requirements been served in the Montana army or air na- gram will be allowed to remove the child from for the employment of workers with dis- tional guard. the program on a one-time basis, and the abilities and pays the individual wages that The law providing a preference for State child will not be deemed a compulsory are equal to or above the State’s minimum residents for employment on State construc- school-age child until he or she becomes 6 wage. tion projects was amended to ensure that at years old. The wage payment law was amended to least 50 percent of workers of each contrac- provide that on those occasions when an tor performing labor on a State construction Other laws. A law was passed creating a employee submits a time sheet after the project are bona fide Montana residents if program of paid educational leave for hospi- employer’s established deadline for process- qualified personnel are available. Previously, tal employees. Hospitals may grant paid ing time sheets for a specific time period and contractors, subcontractors, or employers educational leave to an employee(s) who 1) the employer does not pay the employee were required to ensure that at least 50 per- is working at the sponsoring hospital at the within the 10 business days provided for in cent of the work be performed by State resi- time of application; 2) attends any college or the statute, the employer may pay the em- dents on the entire project. The preference school approved and designated by the spon- ployee the wages due in the ensuing pay requirement applies to any State construc- soring hospital; and 3) agrees to work in a period. Employers may not withhold pay- tion project funded by State or Federal funds, healthcare occupation as a licensed practical ment of the employee’s wages beyond the except a project partially funded with Fed- nurse, registered nurse, nurse practitioner, next ensuing pay period. If there is not an eral aid money from the United States De- speech pathologist, occupational or physi- established time period or time when the partment of Transportation or when resi- cal therapist, or other healthcare professional wages are due and payable, the pay period is dency preference laws are specifically pro- in the sponsoring hospital for period of time presumed to be semimonthly. hibited by Federal law. equal to the paid educational leave time, but not less than 2 years. Before leave is granted, Child labor. The Department of Labor and Nebraska each applicant shall enter into a contract with Industry is now authorized rather than re- the sponsoring hospital agreeing to the terms Equal employment opportunity. The Fair quired to adopt rules to implement and to and conditions of the leave being issued. Employment Practice Act was amended to prevent circumvention or evasion of the child Failure to meet the terms of the contract shall revise provisions relating to hearings before labor standards act. be grounds for revocation of the professional the Equal Opportunity Commission. It was license that was earned through the paid edu- specified that individuals who have suffered cational leave program. Worker privacy. A law was repealed that physical, emotional, or financial harm be- had placed limits on the liability of nonpublic cause of whistleblower protection provision Montana employers who disclosed employment in- violations are added to the list of those com- formation. The law had provided that a plainants who are entitled to, at any of Wages. The exemption from minimum wage nonpublic employer who provided informa- the proceedings prior to , file an and overtime payment requirements for tion about a former or current employee’s action directly in the district court of the those individuals providing companionship employment-related performance to a pro- county where the alleged violation occurred. services to the aged or infirm was amended spective employer of the employee upon The deadline for filing an action directly in to specify that this exemption also applies request of the prospective employer or the district court is 90 days after the com- to those individuals providing respite care former or current employee would not be plainant receives notice of the last action the and that the exemption applies only when liable for civil damages for the disclosure or commission will take on the complaint or the person providing the service is em- any consequences related to the disclosure charge. When entering the last action, the ployed directly by a family member or an unless the employer knowingly, purposely, commission is to issue written notice of the individual who is a legal guardian. This ex- or negligently disclosed information that was 90-day deadline to the complainant by certi- emption is more restrictive than Federal law false. fied mail. The last action on the complaint

Monthly Labor Review January 2004 19 State Labor Laws, 2003

or charge includes the issuance of the final workers employed by them on a public work Inmate labor. The section of the Depart- order after hearing, the determination of rea- not less than one and one-half times the pre- ment of Corrections code pertaining to the sonable cause or no reasonable cause, and vailing rate of wages applicable to the class disposition of funds received from the op- any other administrative action that ends the of the mechanic or worker. This rate shall eration of conservation camps was amended commission’s involvement. apply whenever the mechanic or workman to make the State Forester Firewarden re- works: 1) more than 40 hours in any sched- sponsible for determining the amount of Other laws. A Non-English-Speaking Work- uled workweek or 2) more than 8 hours in wages that must be paid to offenders who ers Protection Act was adopted, merging the any workday unless by mutual agreement participate in conservation camps and who functions of the existing Meatpacking In- the mechanic or worker works a scheduled perform work relating to fire fighting and dustry Worker Rights Coordinator position 10 hours per day for 4 calendar days in any other work projects of conservation camps. and the Non-English-Speaking workers pro- scheduled workweek. gram to achieve General Fund expenditure The prevailing wage law was amended so Department of labor. Labor law provisions savings. that a contractor engaged on a public work enforced by the Commissioner for certain Canvassing board members or any other shall forfeit a penalty of not less than $20 violations of labor laws and regulations were election workers were added to coverage of and not more than $50 for each calendar day, amended. Employers who violate a labor the law protecting judges, clerks of election, or portion thereof, for each worker employed law or regulation or refuse to furnish re- precinct or district inspectors from dis- on the project for which the contractor or quired information are guilty of a misde- charge, loss of pay, loss of overtime pay, subcontractor willfully included inaccurate meanor and may now be assessed up to a loss of sick leave, loss of vacation time, the or incomplete information in the monthly $500 administrative penalty for such viola- threat of any such action, or any other form record required to be submitted to the public tions in addition to other fines. Such per- of penalty as a result of their absence from body. Similar penalties shall be assessed for sons must be provided notice and an oppor- work due to such service in any county if each day a worker employed on the project tunity for a hearing before any fines are fi- reasonable notice has been given to the em- is not reported by the contractor or any sub- nalized. Additionally, employers may not ployer. An employer may reduce the pay of contractor up to a maximum of $1,000 for a change an established regular payday or an employee for each hour of work missed first violation and $5,000 for subsequent vio- place of payment unless, not fewer than 7 by an amount equal to the hourly compen- lations. If a violation involves more than one days before the change is made, affected sation other than expenses paid to the em- provision of the law for the same worker, employees are provided with written no- ployee by the county for such service. the contractor shall forfeit the penalty as- tice. It is now unlawful for an employer to sessed for each violation. The Labor Com- pay employees’ lower wages, salary, or Nevada missioner may, for good cause shown, waive compensation than the amount earned when Wages. The law establishing the duties of or reduce any penalty imposed under the the work was performed. Additionally, the Commissioner of Labor was amended to Act. employers may not decrease employees’ provide that except where enforcement au- The law relating to public works con- wages, salary, or compensation unless the thority is vested in another officer, board, or tracts let by public bodies or the Depart- employer either provides written notice 7 commission, the Labor Commissioner is to ment of Transportation for the construction, days before the decrease or follows the pro- enforce all labor laws of the State, including maintenance, or operation of transportation visions of any collective bargaining agree- those relating to compensation, wages and facilities was amended to specify that con- ment in effect. The Commissioner may as- hours, occupational safety and health, and tracts awarded to design-build teams must sess a fine of not more than $5,000 for each public works projects, without regard to comply with the provisions of the law re- violation of these provisions. whether an employee is lawfully or unlaw- quiring the payment of prevailing wage rates fully employed. on public works projects. New Jersey A resolution was adopted recognizing Wages. The Delaware River and Bay au- April 15, 2003, as Equal Pay Day in Nevada Child labor. A law was enacted providing thority, which was created pursuant to the and encouraging all employers in the State to for the judicial approval of contracts for the “Delaware-New Jersey Compact,” is not to compensate all employees fairly, based on artistic, creative or athletic services or the pay less than the prevailing wage rate to an objective evaluation of their jobs, consid- intellectual property of minors under age 18. workers employed in the performance of ering factors such as the skill, effort, respon- The term of such contracts may not extend any construction contract undertaken in con- sibility and working conditions required for beyond 5 years from the date of approval by nection with an authorized project. The pre- each job. The resolution also congratulates the court. The contract must be shown to be vailing wage rate will be the rate determined public and private employers in Nevada for objectively fair and reasonable; consistent by the Commissioner of Labor under the ranking among the highest in the Nation in with industry standards; consistent and in New Jersey Prevailing Wage Act. paying their employees equal pay for equal compliance with the laws of Nevada, includ- work. ing the laws governing the conduct and em- New Mexico The law relating to the payment of pre- ployment of minors; and in the best inter- vailing wages on public works projects was ests of the minor. Upon granting approval Wages. New legislation increased the State amended. Except, where the workers or of a contract, the court will issue an order minimum wage rate from $4.25 to $5.15 per mechanics are covered by a collective bar- appointing a special guardian to receive and hour on July 1, 2003. The minimum wage rate gaining agreement which provides that the hold from 15 to 50 percent of the net earn- for employees who regularly receive more than mechanic or worker will work a scheduled ings of the minor to be set aside for the ben- $30 a month in tips rose from $2.125 to $2.575 10 hours per day for 4 calendar days within efit of the minor. A contract approved by per hour. The employer may consider tips as any scheduled workweek, contractors or the court may not later be disaffirmed by the part of wages, but such a wage credit is not subcontractors are to pay mechanics or minor. to exceed 50 percent of the minimum wage.

20 Monthly Labor Review January 2004 The city of Santa Fe adopted a Living Employee leasing. The law requiring regis- working conditions, employee rights to form Wage Ordinance that requires the payment tering and licensing of employee leasing con- unions, and the use of child labor. of a minimum wage rate by the city to all tractors does not apply to - full-time permanent workers employed by ers. The law was amended to define tempo- North Carolina the city, while complying with the Fair La- rary services employers and to provide that bor Standards Act and the Bateman Act. The a worker who is employed by a temporary Wages. Obsolete provisions establishing a minimum wage rate is also to be paid by services employer works and should be clas- training wage under the minimum wage law contractors for the city who employ more sified in any construction class or in any oil were repealed. than 25 workers that have a service or con- and gas well service or drilling class under An employee of the State may authorize, struction contract with the city equal to or in Insurance Code regulations will be presumed in writing, a payroll deduction from his or excess of $30,000, excluding the purchase of to be a temporary worker, and the tempo- her salary or wages for deposit in the Paren- goods; businesses receiving assistance relat- rary services employer that provides the tal Savings Trust Fund administered by the ing to economic development in the form of worker must comply with the provisions of State Education Assistance Authority. grants, subsidies, loan guarantees, or indus- the Employee Leasing Act. A measure was enacted to permit a vote in trial revenue bonds in excess of $25,000; and November 2004 to authorize a constitutional amendment allowing units of local government businesses required to have a business li- New York cense or registration from the city and, dur- to borrow money to finance economic devel- opment projects within a defined area. A de- ing any given month, have 25 or more work- Child labor. A law was enacted ensuring that ers, or in the case of non-profit entities that velopment financing plan would be required child performers who work in the State have to include a requirement that the initial users have 25 or more workers. Beginning Janu- a portion of their earnings kept in a trust ary 1, 2004, the minimum wage will be $8.50 of a new manufacturing facility to be located account for them until the age of majority, in the district, and included in the plan must per hour with increases to $9.50 per hour and that they are provided with an adequate scheduled for January 1, 2006, and to $10.50 pay its employees an average weekly manu- education. The child’s custodian or guardian facturing wage that is either above the average per hour scheduled for January 1, 2008. Be- must establish the trust account within 15 ginning January 1, 2009, and each year there- manufacturing wage paid in the county in days of the start of employment and notify which the district will be located or not less after, the minimum wage shall be adjusted the child’s employer of the account’s exist- upward based upon the consumer price in- than 10 percent above the average weekly ence. Employers must transfer 15 percent manufacturing wage paid in the State. dex. The value of health benefits and of the gross pay to the child’s trust account childcare will be considered as an element of within 30 days after the end of employment Child labor. A law was enacted regulating wages. unless the period of employment is longer contracts of minors for artistic, creative, or An equal pay task force was appointed than 30 days. In such a case, the funds must athletic services including actors, actresses, by the Governor. The task force is to study be transferred every payroll period. The musicians, singers and other performers or the extent of wage disparities, both in the child performer may terminate the trust ac- entertainers. The law provides for court public and private sectors, between men and count upon reaching the age of 18. Child approval of contracts and for financial safe- women and between minorities and non-mi- performer employment permits are valid for guards in court orders approving contracts norities; study the factors that cause wage 6 months from date of issuance. To possess and in situations where there is no court or- disparities, including segregation between such a permit the child must be in good edu- der. At least 15 percent of the minor’s gross men and women and between minorities and cational standing. In those instances where earnings pursuant to the contract are to be non-minorities across and within occupa- the child performer is unable to meet State set aside by the minor’s employer in trust, in tions and professions, payment of lower educational requirements because of the em- an account or other savings plan, and pre- wages for female-dominated occupations, ployment schedule, the employer is to pro- served for the benefit of the minor. Require- child-rearing responsibilities and education vide a certified or State-recognized teacher ments were adopted for establishing a trust and training; study the consequences of so that he or she may fulfill educational law and for appointing trustees. wage disparities on the State’s economy and requirements. on families; and develop actions, including The section of the child labor law estab- Private employment agencies. A law was legislation, that are likely to lead to the elimi- lishing restrictions on the hours of work for enacted abolishing the Labor Commissioner’s nation and prevention of wage disparities. minors 16 and 17 years of age was amended Private Personnel Service Advisory Council A final report is to be presented to the Gov- to exempt 17-year-old minors employed as that had performed duties related to the pri- ernor and the legislature by December 15, counselors, junior counselors, or counselors- vate personnel service industry. The Com- 2003. in-training at camps for children during the missioner is now authorized to adopt rules months of June, July, and August. necessary to carry out and administer the Equal employment opportunity. The Hu- provisions of the law dealing with the per- man Rights Act was amended to add dis- Apparel industry. The law that allows the sonnel service industry including those in- crimination based on sexual orientation or State University of New York and the City volving hearings, penalties, and criminal pen- gender identity to the forms of unlawful University of New York to consider labor alties for violations of the law. Such penal- employment discrimination applicable to standards when evaluating bids for school ties can include the denial, suspension, revo- employers, labor organizations, joint ap- apparel and uniforms was expanded to also cation of a license issued under the law, or prenticeship committees, and employ- include bids for the purchase of sports equip- the levying of a fine not to exceed $250. The ment agencies. This provision is not to ment including balls, bats, and other goods licensee will be notified in writing of the de- be used to adopt or implement a quota on intended for use by those participating in nial, revocation, or suspension via a letter the basis of sexual orientation or gender sports and games. Labor standards to be signed by the Commissioner or designee, and identity. considered include employee compensation, will have the right to appeal the decision.

Monthly Labor Review January 2004 21 State Labor Laws, 2003

Other laws. Among amendments to the law lawful money of the United States, by check amount for reconstruction, remodeling, or establishing and regulating the Board of or by direct deposit in the financial institu- renovation increased from $18,764 to Nursing, it was specified that before hiring a tion of the employee’s choice. $19,752. registered nurse or a licensed practical nurse in the State, a healthcare facility must verify Worker privacy. The law relating to confi- Worker privacy. The law regarding privacy that the applicant has a current, valid license dentiality of central personnel division me- of peace officer records was amended to in- to practice nursing. diation service records was amended. Divi- clude the positions of firefighters and emer- A member of a volunteer fire department, sion records relating to its mediation ser- gency medical technicians (EMT). Firefighter rescue squad, or emergency medical services vices are now exempt from the law that is defined as any regular, paid, or volunteer, agency called into service of the State after a identifies these records as public records, member of a lawfully constituted fire depart- proclamation of a state of disaster by the and as such, open and accessible for inspec- ment of a municipal corporation, township, Governor or the General Assembly, or upon tion during reasonable office hours. Addi- fire district or village. EMT is defined as an the activation of the State Emergency Re- tionally, an employee may not be dis- EMT-1, EMT-basic and paramedics that pro- sponse Team in response to a disaster or charged, disciplined, or penalized concern- vide emergency medical services for a public emergency, will have the right to take leave ing his or her compensation, conditions, lo- emergency medical service organization. without pay from his or her civilian employ- cation, or other privileges of employment Residential and familial information is not to ment. No such individual will be forced to because of the employee’s request for or be included in the public record. This in- use or exhaust his or her vacation or other participation in the mediation services pro- cludes the employee’s name, residential ad- accrued leave from his or her civilian em- vided by the division. dress and phone number, name and address ployment for a period of active service. For of employer, social security number, bank the volunteer member to be entitled to take Workplace security. The Information Tech- account, debit card, charge card or credit card leave without pay, his or her services must nology Department was authorized to re- number, the name of any beneficiary of em- be requested in writing by the Director of quire as a condition of employment that in- ployment benefits, emergency telephone the Division of Emergency Management or dividuals who have unescorted physical ac- number of spouse, a former spouse, or any by the head of a local Emergency Manage- cess to the facilities or other security-sensi- child of a firefighter or EMT. ment Agency. The request is to be directed tive areas of the department be fingerprinted to the Chief of the member’s volunteer fire and subject to security background checks. Oklahoma department, rescue squad, or emergency Wages. An employer who is found to have medical services agency, and a copy is to be Private employment agencies. The State em- provided to the member’s employer. The violated the State wage payment law on two ployment agency licensing law was amended or more occasions within any 6-month pe- law will not apply to those members whose to stipulate that employment agencies are services have been certified by their em- riod may be assessed an administrative fine not subject to licensure if they charge fees of $500 per violation. Previously, the fine ployer as essential to the employer’s own on- exclusively to employers. going emergency or disaster relief activities. could be imposed only in instances of two or more knowing violations. The State Board of Education is to adopt Other laws. The section of law relating to rules relating to leaves of absence, without the authority of the labor commissioner to Worker privacy. Employers who conduct loss of pay or time, for periods of military adopt rules on wages and working conditions training and for State or Federal military employee-owned vehicle searches of their in the State was amended to clarify that or- employees must conduct the searches on duty or for special emergency management ders issued by the Commissioner of Labor service. The rules will apply to all public their own property. Searches that are con- must be promulgated as administrative rules ducted on property not owned or rented by school employees employed by local boards under the Administrative Practices Act to of education or by charter schools. The the employer will require a search warrant have the force and effect of law. Provisions issued according to law. rules will provide that (1) the State pays were repealed relating to the commissioner any salary differential to all public school calling conferences of employers, employee Whistleblower. The Whistleblower Act was employees in State-funded positions; (2) representatives, and the public to consider the employing local board of education pays amended to provide that a State agency may and make recommendations concerning not take disciplinary action against an em- any pay differential to all public school em- changes in hours, minimum wages, and work- ployees in locally funded positions; (3) the ployee who discusses the operations and ing conditions, and to issue orders based on functions of the agency with the print or employing charter school pays any pay dif- these recommendations. ferential to all public school employees in electronic media. the charter school; and (4) the employing local board of education pays the local Ohio Oregon supplement. Wages. By law, threshold amounts for con- Wages. A minimum wage ballot initiative tract coverage under the State prevailing was approved by the voters in the Novem- North Dakota wage law are adjusted every 2 years accord- ber 2002 general election. It provided for an Wages. The section of the wage collection ing to the change in the Census Bureau’s Im- increase in the State minimum wage rate from law relating to direct deposit of wages was plicit Price Deflator for Construction, pro- $6.50 per hour to $6.90 on January 1, 2003. amended to eliminate a provision that had vided that no increase or decrease exceeds 6 It also provided that beginning January 1, prohibited employers from requiring em- percent for the 2-year period. As a result, 2004, and annually thereafter, the rate will ployees to receive their pay by direct de- effective January 1, 2004, the threshold be adjusted for inflation based on data from posit into a financial institution. The law amount for new construction rose from the U.S. Bureau of Labor Statistics Con- now provides that payment will be made in $62,549 to $65,843 and the threshold sumer Price Index. As a result, the rate was

22 Monthly Labor Review January 2004 increased to $7.05 per hour on January 1, was prepared solely for internal use by the active State duty will be considered tempo- 2004. public body to identify employees of the rary employees of the military department The law establishing a penalty for failure public body. Additionally, the public body except that they are not subject to the collec- to pay wages upon termination of employ- may not disclose a duplicate of the photo- tive bargaining and arbitration rules and regu- ment was amended to limit the penalty wage graph on the badge or card. lations that apply to public or private em- liability of businesses that primarily sell The Board of Public Safety Standards ployees within the State. When the motor vehicles or farm implements in the and Training and the Department of Public employee’s leave of absence for active ser- case of employees paid on a commission Safety Standards and Training may not dis- vice of the State is terminated, the employee basis where there is a dispute between the close a photograph of a public safety of- is to return to his or her employment within employer and the employee regarding the ficer without the written consent of the of- 7 calendar days. amount of commission due upon the ficer or his or her employer. A public safety The State law regarding benefits for State employee’s termination, and where the agency is to provide the department with employees or public officers while absent amount of unpaid commission ultimately access to personnel records of an employee on military leave was amended. The State found due is less than 20 percent of the or former employee of the public service will provide coverage under an employer- amount of unpaid commission claimed by agency if the department requests access to sponsored health plan to a public officer or the employee. In these cases, the penalty the records; the department is conducting employee of the State for a period not ex- wage liability of the employer may not ex- an investigation relating to the employee or ceeding a total of 12 months while the indi- ceed the amount of the unpaid commission former employee’s qualifications for em- vidual is absent on leave. This applies both or $200, whichever is greater. These penalty ployment, training or certification as a pub- to individuals serving in the United States limitations do not apply if the employer has lic safety officer; and the records are related Armed Forces and to employees who are violated final pay provisions one or more to the issue being investigated. A public members of the organized State militia who times in the preceding year, or when an em- safety agency that discloses this informa- are called into active service of the State by ployer terminated one or more other employ- tion is presumed to be acting in good faith the Governor. Employers other than the ees on the same date that the employee’s and, unless lack of good faith is shown by a State may provide such coverage. The posi- employment ceased. preponderance of the evidence, is immune tion of an employee serving in the United The law relating to the Oregon Youth from civil liability for the disclosure or its States armed services will not become va- Conservation Corps was amended to specify consequences. cant nor shall the officer or employee be sub- that corps members are exempt from the ject to removal as a consequence of such ser- State public works prevailing wage law. Private employment agencies. The act regu- vice unless it exceeds 5 years. lating employment agencies was amended to Family issues. Employers of 6 or more per- specifically exclude employment listing ser- Pennsylvania sons in the State are to provide leave from vices from coverage. An employment listing Wages. A resolution was adopted designat- employment to attend criminal proceedings service is defined as a business that provides ing April 15, 2003, as “Equal Pay Day” in for eligible employees who have been crime lists of specified positions available with an Pennsylvania and encouraging all residents victims or who have an immediate family employer other than the service or that holds to support and maintain pay equity through- member who has been a crime victim. The itself out to individuals as able to provide out the Commonwealth. leave may be unpaid; however, paid accrued information about specific positions of em- vacation leave or other paid accrued leave ployment with an employer other than the Equal employment opportunity. An Execu- may be used. Reasonable notice is to be employment listing service; charges an indi- tive order was issued barring State agencies given to the employer, and the amount of vidual a fee for its services; and does not from discriminating against employees leave that an employee takes may be limited arrange interviews or otherwise intercede be- based on their gender identity, adding by the employer if the employee’s absence tween an individual and a prospective em- transgendered people to the list of those creates an undue hardship to the employer’s ployer but may offer limited counseling and rights are protected. The order adds “gen- business. An employee is eligible if he or she employment-related services to an individual der identity or expression” to the list that has worked an average of more than 25 hours that includes, but is not limited to, personal also includes race, color, religious creed, an- per week for a covered employer for at least grooming and appearance and interview cestry, union membership, age, gender, 180 days immediately before the date that preparation. The Commissioner of the Bu- sexual orientation, national origin, AIDS or the employee takes leave to attend a criminal reau of Labor and Industries is to adopt rules HIV status, or disability. proceeding. An employer who denies leave governing terms of contracts and fees An Executive order was issued reestab- to an employee or who discharges, threatens charged. The service is to make contract and lishing the Pennsylvania Commission for to discharge, intimidates or coerces an em- fee schedule information available to clients. Women. Duties and functions of the com- ployee because he or she takes this leave mission include monitoring women’s educa- commits an unlawful employment practice Other laws. The law governing State militia tional and employment needs and opportu- and is subject to a civil action. duty, pay, allowances, and re-employment nities; promoting job training, educational rights was amended to provide that mem- programs and upward mobility for women; Worker privacy. A law was enacted prohib- bers of the organized militia while on active encouraging the development of and access iting public bodies (State, local, and special State duty, for reasons including those re- to funding for small business enterprises government bodies) from disclosing the iden- lated to homeland security, will receive not owned or operated by women; issuing peri- tification badge or card of an employee of less than the pay and allowances of their odic reports on new State laws, regulations the public body without the written consent corresponding grades of the Armed Forces and governmental policies affecting women; of the employee when the badge or card con- of the United States. Those members of the serving as a liaison between government and tains the photograph of the employee and it organized State militia who are ordered to nongovernmental groups and organizations

Monthly Labor Review January 2004 23 State Labor Laws, 2003

whose purposes relate to the interests of National Guard units or activated reserve The State child labor law was amended by women; and, as appropriate, providing to units, or members of National Guard Units establishing requirements on contracts entered the Governor and the General Assembly re- who have volunteered for active duty in “Op- into on behalf of entertainers under the age of ports and recommendations for legislative or eration Enduring Freedom,” “Operation 18. The law pertains to every minor who other governmental action. Noble Eagle,” or “Operation Iraqi Freedom,” desires to perform artistic and creative ser- or any combination of these duties, were au- vices in the State. The minor, parent, or guard- Plant closing. A resolution was adopted ask- thorized to use up to 45 days of accumu- ian, are required to petition the court for ap- ing the President and U.S. Congress to take lated in 2003 in connection with proval of a contract for such services. Peti- all necessary action to preserve the absences resulting from the military service. tions will be filed in the probate court of the healthcare benefits of steel industry retirees In addition, such employees were authorized county where the minor resides or performs. and retirees in other similarly affected indus- to use up to 90 days of accrued sick leave in If approved, the minor will not be allowed to tries where there have been massive layoffs calendar year 2003 as if it were annual leave disaffirm the contract on the grounds of mi- or plant closings. without regard to the 30-day limit on annual nority status or grounds that the parent or leave that may otherwise be used in a year. guardian lacked personal authority. Upon con- Rhode Island tract approval, all types of earnings become South Dakota the sole property of the minor. There is a Wages. New legislation increased the State court requirement that 15 percent of the minimum wage rate from $6.15 to $6.75 per Equal employment opportunity. The ban on minor’s gross earnings be placed in trust for hour on January 1, 2004. sex discrimination in employment will not the minor’s benefit; and the minor or the par- A resolution was adopted declaring April prevent a school district from considering ents or guardian may request that an addi- 3, 2003, to be “Rhode Island Pay Equity the sex of an employee in relation to em- tional percentage be placed in trust. Court- Day” and asking all Rhode Islanders to join ployment duties in a locker room or toilet approved contracts will include all require- in urging all other States to establish equi- facility used only by members of one sex. ments for rendering of the minor’s services table compensation that eliminates sex and and protect the interest of the minor. The race-based wage discrimination. Tennessee court may revoke approval or modify the con- tract if necessary to protect the physical or Family issues. Employers, including the Wages. Amendments to the wage payment mental well-being of the minor. State and any political subdivision of the law specify that the civil penalty applicable State, may provide reasonable unpaid break to second and subsequent violations of re- time each day to an employee who needs to Equal employment opportunity. Administra- quirements regarding payment of compen- breastfeed or express breast milk for her in- tion of title V of the Federal Older Ameri- sation for employees in private employment fant child to maintain milk supply and com- cans Act was transferred from the Commis- or misrepresentation of wages for such em- fort. The break time must, if possible, run sion on Aging and Disability to the Depart- ployment may be assessed at the discretion concurrently with any break time already ment of Labor and Workforce Development. of the Commissioner of Labor and provided to the employee. An employer is Existing funding to community providers Workforce Development, and that the com- not required to provide break time if to do so will continue so long as the Federal funding missioner is to provide the employer with would create an undue hardship on the continues and providers meet program goals. 30 days’ notice and an opportunity for a employer’s operations. An employer must The complaint procedure was revised for hearing prior to the imposition of any civil make a reasonable effort to provide a pri- persons claiming to be aggrieved by a dis- penalty. If an employer fails to notify the vate, secure and sanitary room or other loca- criminatory practice, on the basis of race, commissioner in writing within 30 days tion in close proximity to the work area, color, or national origin, under Title VI of the from the receipt of notification of penalties other than a toilet stall, where an employee Federal Civil Rights Act of 1964. Enforce- of its intent to contest the imposition of a can express her milk or breastfeed her child. ment duties and powers were transferred penalty, the assessment of the penalty as from the Human Rights Commission to the stated in the notification will be deemed a Equal employment opportunity. It was made Title VI Compliance Commission. final order of the commissioner and not sub- an unlawful employment practice for any The Governor issued an Executive order ject to further review. All penalties owed employer, when an employee has presented directing that no State executive branch are to be paid to the commissioner. to the employer an internal complaint alleg- agency, department, board, or commission ing harassment in the workplace on the basis is to discriminate in employment on the of race or color, religion, sex, disability, age, Child labor. Amendments to the child labor basis of race, religion, gender, age, handicap, sexual orientation, gender identity or expres- law provide that the civil penalty applicable or national origin. The order also creates sion, or country of ancestral origin, to refuse to second or subsequent law violations may the Governor’s Advisory Committee on to disclose in a timely manner in writing to be assessed at the discretion of the Commis- Equal and Fair Employment Opportunity. that employee the disposition of the com- sioner of Labor and Workforce Development, This committee will monitor the implemen- plaint, including a description of any action and that if an employer fails to notify the tation of this Executive order and regularly taken in resolution of the complaint. Pro- commissioner in writing within 30 days from review the State’s progress in achieving fair vided, however, no other personnel informa- the receipt of notification of penalties of its and equal employment opportunity, and tion will be disclosed to the complainant. intent to contest the imposition of a penalty, advise the Governor on the level of compli- the assessment of the penalty as stated in ance and additional actions needed to enable South Carolina the notification will be deemed a final order the State to fulfill the mandate of the Execu- of the commissioner and not subject to fur- tive order. This Executive order supersedes Other laws. Permanent full-time State em- ther review. All penalties owed are to be and rescinds Executive Order No. 2, signed ployees who are members of Federalized paid to the commissioner. February 27, 1995.

24 Monthly Labor Review January 2004 Worker privacy. Among several changes in tronic funds transfer. An employer who Family issues. Limited compensation will the law governing the licensure of polygraph wants to pay wages through a direct deposit be provided to an immediate family member examiners, provisions were eliminated which plan must notify each affected employee, in of a deceased violent crime victim for travel had required that, in employment examina- writing, at least 60 days before the date on expenses associated with attending the fu- tions, each prospective examinee be shown a which the direct deposit payroll system is neral or for lost wages resulting from bereave- list of the questions to be asked and that the scheduled to begin, that the employer is ment leave, taken in connection with the questions be reviewed with the examinee adopting a direct deposit payroll system, and death of the victim, for up to 10 work days, prior to the commencement of the examina- obtain from the employee any information or a maximum of $1,000. tion, and that each prospective examinee be required by the financial institution in which shown a list of those areas that the examina- the employee maintains the account that is Child labor. The Alcoholic beverage law was tion will not cover. necessary to implement the electronic funds amended to authorize the holder of a permit The law dealing with the confidentiality transfer. or license providing for the on-premises con- of public records was amended to provide Payroll deductions from the wages of sumption of alcoholic beverages, who also that an employee of the Department of Cor- county employees previously limited to holds a food and beverage certificate, to em- rection is to be allowed to inspect investiga- payments to a credit union, payment of la- ploy a person under 18 years of age to work tive records of the Internal Affairs Division bor union or employee association member- as a cashier for transactions involving the of the Department of Correction prior to a ship dues, payment of fees for parking in a sale of alcoholic beverages if the alcoholic due process hearing at which disciplinary ac- county-owned facility, or payments to a beverages are served by a person 18 years of tion is considered or issued unless the com- charitable organization, may now be autho- age or older. missioner specifically denies in writing the rized for other approved purposes. employee’s request to examine the records Cash paid as wages will now be presumed Equal employment opportunity. The Com- prior to the hearing. abandoned if, for longer than 6 months if the mission on Human Rights was abolished, amount is $100 or less, or for longer than 3 and its powers, duties, functions and activi- Other laws. A law was enacted prohibiting years if greater than $100 provided the exist- ties were transferred to the Texas Workforce the termination of an employee who is a vol- ence and location of the employee or former Commission, Civil Rights Division. By No- unteer firefighter due to his or her absence or employee to whom the wages are owed is vember 1, 2003, the Governor was to have lateness to work because of responding to an unknown to the employer and a wage claim appointed members to a new Human Rights emergency. Any employee who is termi- has not been filed under the wage payment Commission that will be responsible for gov- nated in violation of this law may bring a law. A check paid as wages for $100 or less erning the Civil Rights Division, with au- civil action against the employer within 1 is presumed to be abandoned on the latest thority to grant or seek relief from an unlaw- year from the date of the violation seeking of: (1) the 180th day after the check was ful employment practice, or to institute reinstatement, payment of back wages, and payable; (2) the 180th day after the date the criminal proceedings. reinstatement of fringe benefits and senior- issuer of the check last received documented ity rights. An employer may charge any time communication from the payee; or (3) the Genetic testing. A person who unlawfully that an employee loses from employment 180th day after the date the check was is- discloses genetic information will now be li- because of his or her response to an emer- sued if, during that period, a claim to the able for a civil penalty of up to $10,000. The gency against the employee’s regular pay. check has not been asserted or an act of own- attorney general may bring an action in the The employer also has the right to request ership by the payee has not been exercised. name of the State to recover the penalty, plus an employee, who loses time for such rea- A check for wages for more than $100 is reasonable attorney’s fees and court costs. son, to provide a written statement from the presumed abandoned on the latest of: (1) the supervisor or acting supervisor of the volun- 3rd anniversary of the date the check was Workplace security. A commercial nuclear teer fire department stating that the em- payable; (2) the 3rd anniversary of the date power plant licensee and its contractors, for ployee responded to an emergency and list- the issuer of the check last received docu- security reasons and consistent with require- ing the time and date of the emergency. mented communication from the payee of ments of the United States Nuclear Regula- the check; or (3) the 3rd anniversary of the tory Commission, are entitled to obtain Texas date the check was issued if, during that pe- criminal history record information, from the Wages. A law was enacted specifying that riod, a claim to the check has not been as- Department of Public Safety, that relates to the hourly rate provided for in the State mini- serted or an act of ownership by the payee a person who has or is seeking employment mum wage law supersedes a wage established has not been exercised. at or access to a commercial nuclear power in an ordinance, order, or charter provision Among several amendments to the In- plant. governing wages in private employment, dustrial Development Corporation Act, it other than wages under a public contract. was specified that a corporation may spend Employee leasing. The law regulating staff This provision does not apply to any State tax revenue received under the act for job leasing companies was amended to provide or Federal job training or workplace devel- training offered through a business enterprise that a client company is solely obligated to opment program or to a minimum wage es- only if the business enterprise has commit- pay any wages for which obligation to pay tablished by a government entity that ap- ted in writing to create new jobs that pay is created by an agreement, contract, plan, or plies to a contract or agreement entered into wages that are at least equal to the prevailing policy between the client company and the by a government entity and a private entity. wage for the applicable occupation in the assigned employee, and the staff leasing com- The wage payment law was amended to local labor market area, or to increase its pay- pany has not contracted to pay. The staff authorize employers to pay wages by direct roll to pay wages that are at least equal to the leasing company is to disclose this informa- deposit to employees who maintain accounts prevailing wage for the applicable occupa- tion to all its assigned employees. Prior law at financial institutions that qualify for elec- tion in the local labor market area. required the staff leasing company to take

Monthly Labor Review January 2004 25 State Labor Laws, 2003

the responsibility of paying assigned em- vided to certain persons in the uniformed the firefighter or police officer to change or ployees’ wages even if they had not con- services and military service of the United discontinue the coverage. A firefighter or tracted for such payments. States including protection from job dis- police officer may, without restrictions as to crimination and reemployment rights when the amount of time, voluntarily substitute Department of labor. Legislation was en- returning from active duty. for a firefighter or police officer who has been acted extending the Texas Workforce Com- A person who is called to active military called to active Federal military duty for a mission through September 1, 2009. Among duty as a member of the Texas National period expected to last 12 months or longer. other provisions, it also adopted guidelines Guard in the service of the State or the Municipalities are to maintain military leave regarding the functions of the commission, United States and who suffers an economic time accounts to receive and distribute do- amended the qualifications for commission hardship as a result of serving on active duty nated leave. members, revised the grounds for removal will now be eligible to receive supplemental The Education Code was amended to from the commission, and established mem- pay. The comptroller is to establish the provide that a school district employee with ber training requirements. Texas National Guard members’ supplemen- available personal leave is entitled to use All functions and activities performed by tal active duty pay account in the general the leave for compensation during a term of the Texas Department of Licensing and revenue fund. A Guard member may receive active military service. In addition, school Regulation relating to conducting adminis- an amount, to be determined by the adjutant districts were authorized to adopt a policy trative hearings at the department were trans- general, not to exceed the lesser of the amount providing for the paid leave of absence of ferred to the State Office of Administrative required to alleviate the economic hardship employees taking leave for active military Hearings. the member suffers as a result of serving on service. The requirement, under dispute resolu- active duty, or the difference between the tion procedures, that the Texas Workforce amount of income that the member has lost Utah Commission enter an order in accordance from civilian employment as a result of be- with the final determination of an action un- ing called to active duty and the amount of Wages. The section of the minimum wage der the Judicial Review of Commission De- military pay and allowances the member re- law establishing the wage rate for employees cision subchapter was repealed. ceives from State or Federal sources while who regularly receive tips was amended to on active duty. delete a provision that tipped employees Other laws. An addition to the Penal Code Employees of the State called to ac- could be paid not less than 55 percent of the makes it unlawful for a person to know- tive duty during a national emergency to minimum wage when the balance received ingly traffic another person with the intent serve in a reserve component of the Armed from tips was sufficient to bring the em- that the trafficked person engage in forced Forces may use any accrued vacation ployee to the minimum wage. The law now labor or services or in prostitution or child leave, earned compensatory leave, or over- refers to the cash wage obligation established pornography. An offense will be a felony time leave to maintain benefits for the by administrative rule that matches the Fed- of the second degree, except that it will be a employee or his or her dependents while eral minimum cash wage of $2.13 per hour. felony of the first degree if the offense in- on military duty. The State agency is to The Department of Human Resource volves prostitution or child pornography grant sufficient emergency leave as differ- Management was directed to conduct a and the person who is trafficked is younger ential pay to a State employee on unpaid study regarding salary data related to than age 14, or if the commission of the military leave if the employee’s military whether or not compensation paid to State offense results in the death of the person gross pay is less than the employee’s employees differs between genders. A re- who is trafficked. “Traffic” means to trans- State gross pay. The combination of port, including any proposed legislation, port another person or to entice, recruit, emergency leave and military pay may not was to be made to the Government Opera- harbor, provide, or otherwise obtain an- exceed the employee’s actual State gross tions Interim Committee during the 2003 other person for transport by deception, pay. interim. Benchmark positions were to be coercion, or force. If a municipal or county employee who established and examined for factors includ- The law establishing guidelines relating is a member of a reserve component of the ing for the percentage of each gender in the to acceptable off-duty employment by com- Armed Forces of the United States, includ- position, the average length of employment missioned officers of the Texas Department ing any part of the State military forces, is by the State and in each position for each of Public safety was amended to specify that called to active military duty and subse- gender, and the average salary of male and the guidelines are to be applied uniformly to quently exhausts all military leave to which female employees. The study was also to all supervisory and non-supervisory com- he or she is entitled under State law, the mu- examine the percentage of part-time State missioned officers, and to provide that if the nicipality or county may continue the employees of each gender. department denies approval of an officer’s individual’s salary payments until the per- The section of the payment of wages law secondary employment or proposed second- son is no longer on active duty. prohibiting retaliation against an employee ary employment, he or she must be If a firefighter or police officer employed who files or is about to file a complaint, who promptly notified in writing of the specific by a municipality is called to active military testifies or is about to testify in an enforce- guideline on which the department’s deci- duty for any period of time, his or her em- ment proceeding, or who the employer be- sion was based and why the employment is ployer must continue to maintain any health, lieves may file a complaint or testify was prohibited by the guideline. dental, or life insurance coverage and any amended. Previously, the law protected A member of the State military forces, health or dental benefits coverage that the employees from discharge or threat of dis- who is ordered to active State duty by the firefighter or police officer received through charge. It now prohibits discharge, demo- Governor or by other proper authority un- the municipality on the date he or she was tion, or any other form of retaliation against der State law, will now be entitled to the called to active military duty until the mu- an employee in the terms, privileges, or con- same benefits and protections as those pro- nicipality receives written instructions from ditions of employment.

26 Monthly Labor Review January 2004 Equal employment opportunity. Among in the State is not required to file the entity Virginia amendments to the Antidiscrimination Act, the information. procedure for an aggrieved person to file a Wages. The law relating to the payment of wages was amended to permit wages to claim was revised to authorize the Antidis- Inmate labor. The section of the Code of be paid into a trust account on which the crimination and Labor Division to transfer a Criminal Procedure regarding court-ordered employee is a named beneficiary. Such request for agency action filed with the divi- restitution to crime victims was amended to payment must be with the consent of the sion to the Federal Equal Employment Op- permit the court to award up to 5 days of employee. portunity Commission (EEOC) in accordance the individual victim’s wages that were lost with any work share agreement that exists due to the theft or damage to tools or equip- Child labor. The minimum age was reduced between the division and the EEOC and that is ment items of a trade that were owned by from 13 to 12 for children to be exempt in effect on the day on which the agency ac- the victim and were essential to his or her from the child labor law (except for those tion request is transferred. This transfer is employment. considered the commencement of an action sections prohibiting work that is hazardous under Federal law. The director may issue a to health or morals) for employment as Other laws. The Labor Commission is to sports referees by a charity organization, a determination and order to the respondent to assume certain responsibilities relating to cease any discriminatory or prohibited em- unit of state or local government, or for an coal mine certification and fee collection that organization of referees, sponsored by an ployment practice and provide relief to the were previously performed by the Labor aggrieved party as is determined appropriate. organization recognized by the U.S. Olym- Commission’s Safety Division. pic Committee. The law providing State employees with Worker privacy. Current or former employ- a pay allowance for time spent on duty in ers of law enforcement and training academy Equal employment opportunity. The section the United States Armed Forces or the Utah applicants are now required to provide em- of the Freedom of Information Act relating National Guard was amended to also apply ployment history information to the law en- to record exemption for employment dis- to county and municipal employees. These forcement agency or academy if proper no- crimination investigations was amended to employees may be allowed up to full pay tice and authorization procedures are fol- expand the record exemption for investiga- for all time not in excess of 15 days a year lowed. Information provided may include tor notes, correspondence and information, spent on duty at annual encampment or rifle dates of employment, compensation paid, which is furnished in confidence with respect competition or other duties in connection attendance record, any disciplinary action to an active investigation of individual em- with the reserve training and instruction re- taken, and a statement regarding whether the ployment discrimination complaints that are quirements. This leave is at the discretion of employer would rehire the applicant and, if made to the Department of Human Resource the employing county or municipality and, not, the reasons why. In the absence of fraud Management to include any such investiga- if granted, shall be in addition to annual vaca- or malice, an employer is not subject to any tions conducted by personnel of the local tion leave with pay. civil liability resulting from the release of the governing body who are authorized by law information requested. to conduct these investigations in confi- Vermont dence, including local school boards. Workplace violence/security. Political subdi- visions of the State that operate public water Wages. New legislation increased the State Worker privacy. The law relating to the cer- systems were authorized to require prospec- minimum wage rate from $6.25 to $6.75 per tified nursing facility education initiative was tive and current employees and contractors hour on January 1, 2004, with a further in- amended to repeal the previously established and those seeking access to public water sys- crease to $7 per hour scheduled for January expiration date for the program. Another tem facilities to submit to a criminal back- 1, 2005. An employer in the hotel, motel, amendment provides that the records, re- ground check. If employment is denied or tourist place, and restaurant industry may ports, and communications of any staff mem- terminated because of information obtained not employ a service or tipped employee at ber or other person acting on behalf of the through a criminal background check, the pub- a wage rate less than $3.58 an hour. Begin- nonprofit organization are privileged com- lic water utility must notify the person in ning on January 1, 2005, this rate is sched- munications and may not be disclosed or ob- writing of the reasons for denial or termina- uled to rise to $3.65 an hour, and thereafter tained by legal discovery proceedings unless tion and give him or her an opportunity to to a rate to be determined when the basic a circuit court, after a hearing and showing of respond to the reasons and to seek review of minimum wage rate is increased. A “service good cause arising from extraordinary circum- the denial or termination through established or tipped employee” is defined as all those, stances, orders the disclosure of such administrative procedures. in either hotels, motels, tourist places, and records, reports, and communications. restaurants who customarily and regularly Employee leasing. The law requiring the li- receive more than $30 per month in tips for Workplace security. The Department of censing of professional employer organiza- direct and personal customer service. Human Resource Management is to develop tions was amended to now provide for an- a Statewide policy for designating sensitive nual registration rather than licensing. It also Child labor. A resolution was adopted des- positions within each State agency. Such eliminated the Professional Employer Orga- ignating March 26, 2003, as Child Labor sensitive positions will include positions nization Board, established qualifications for Awareness Day in Vermont. generally described as being directly respon- registration and specified the information to sible for the health, safety and welfare of be filed by registrants. A professional em- Equal employment opportunity. The manda- the general populace, or for protection of ployer organization that is domiciled out- tory retirement age for justices of the State critical infrastructures. Final candidates for side of the State and employs less than 50 Supreme Court and judges of all subordinate employment in a sensitive position will be employees who are employed or domiciled courts was raised from 70 to 90. required, as a condition of employment, to

Monthly Labor Review January 2004 27 State Labor Laws, 2003

submit to a criminal background check, sub- for Seattle, or a successor index, for the pre- drive for more than 10 consecutive hours mit to fingerprinting and provide personal vious biennium as calculated by the United without 8 consecutive hours off duty; drive descriptive information, all of which will be States Department of Labor. Adjusted dol- after the driver has on-duty time of 15 hours forwarded through the Central Criminal lar amounts of indebtedness will be rounded without 8 consecutive hours off duty; or Records Exchange to the Federal Bureau of to the nearest $500 increment. drive after he or she has been on duty for a Investigation. Among provisions relating to the prevail- total of 70 consecutive hours within 8 con- As a condition of employment, any ing wage law, all intent and affidavit fees paid secutive days. On-duty time is defined as all county having the county manager form of by contractors are now to be dedicated to time from when a driver begins work or is government must require any applicant who the sole purpose of administering the pre- required to be in readiness to work until the is offered or accepts employment at the vailing wage program. The Department of time he or she is relieved from work and all county’s water treatment facility to submit Labor and Industries is to establish a goal of responsibility for performing work. to fingerprinting and to provide personal conducting surveys for each trade every 3 descriptive information to be forwarded years; actively promote increased response Preference. Among amendments to the along with the applicant’s fingerprints rates from all survey recipients in every West Virginia Jobs Act, the 6-month resi- through the Central Criminal Records Ex- county both urban and rural; actively work dency requirement was eliminated from change to the Federal Bureau of Investiga- with businesses, labor representatives, pub- the local labor market resident preference tion for the purpose of obtaining criminal lic agencies, and others to ensure the integ- for work on public improvement projects, history information. Such applicants will, if rity of information used in the development the threshold amount for construction required by ordinance, pay the cost of fin- of prevailing wage rates, and ensure uniform project coverage was increased from gerprinting or a criminal records check or compliance with the law; maintain a timely $500,000 to $1 million, and law coverage both. processing of intents and affidavits, with a was extended to include projects let by The section of the law relating to com- target processing time no greater than 7 work- counties and municipalities. mercial driver’s licenses and hazardous ma- ing days from receipt of completed forms; terials endorsements was amended to and develop and implement electronic pro- Wisconsin meet the requirements of the Federal U.S.A. cessing of intents and affidavits and promote Wages. On January 1, 2003, the threshold Patriot Act of 2001. This act, in part, pro- the efficient and effective use of technology amount for coverage under the State pre- hibits issuance by States of commercial to improve the services provided by the pre- vailing wage laws for State and municipal driver’s licenses with hazardous materials en- vailing wage program. In establishing the contracts was changed administratively dorsements unless the U.S. Secretary of prevailing wage rates, all data collected by from $175,000 to $180,000 for contracts in Transportation certifies that the applicant the department may be used only in the which more than one trade is involved, and poses no security risk. county for which the work was performed. from $36,000 to $37,000 for contracts in which a single trade is involved. On Janu- Hours. An amendment to the labor law Washington ary 1, 2004, these amounts were changed specifies that rules adopted regarding appro- administratively to $186,000 for contracts Wages. The State minimum wage rate is ad- priate rest and meal periods as applied to in which more than one trade is involved, justed for inflation annually in September employees in the construction trades may and $38,000 for contracts in which a single by a calculation using the U.S. Bureau of be superseded by a collective bargaining trade is involved. Labor Statistics Consumer Price Index for agreement covering such employees if the The Wage Payment and Collection law Urban Wage Earners and Clerical Workers terms of the agreement specifically require was amended to exclude from the definition (CPI-U) for the previous year. As a result, rest and meal periods and prescribe require- of an “employee”, for purposes of coverage, the rate for employees older than age 18 in- ments concerning them. creased from $6.90 per hour to $7.01 on any independent contractor, or a person employed in a managerial, executive, or com- January 1, 2003, and to $7.16 on January 1, Agriculture. The Department of Labor and missioned sales capacity or in a capacity in 2004. Also receiving these rates are 16 and Industries and stakeholders representing ag- which the person is privy to confidential 17-year-olds, the result of an administrative ricultural employers and employees were to matters involving the employer/employee re- rule requiring that they earn the same mini- report to the House Commerce and Labor lationship. This law provides the authority mum wage as adults; 14 and 15-year-olds Committee and the Senate Agricultural Com- to process wage claims and to collect unpaid may be paid 85 percent of the adult mini- mittee by September 1, 2003, and by De- wages due regarding minimum wage pay- mum wage. cember 1, 2003, on the status of the rule ments, overtime premium pay, prevailing The law relating to an employer’s indebt- development and implementation process wages, and child labor penalties. edness to a deceased person for unpaid for cholinesterase medical monitoring of farm wages, labor, or services performed was workers who handle cholinesterase-inhibit- Wyoming amended to provide that if the decedent’s ing pesticides. employer is the State of Washington, then Family issues. A resolution was adopted the amount of the indebtedness that can be West Virginia encouraging breastfeeding and commend- paid under the law will not exceed $10,000. ing employers, both in the public and the At the beginning of each biennium, the direc- Hours. A new section was added to the code private sector, who make accommoda- tor of financial management may, by admin- regulating motor carriers of passengers and tions for breastfeeding mothers whenever istrative policy, adjust the amount of indebt- property for hire, providing for the regula- feasible. edness that can be paid to levels not to ex- tion of intrastate driving hours and duty ceed the percentage increase in the consumer hours of for-hire carriers that transport pas- Equal employment opportunity. The up- price index for all urban consumers, CPI-U, sengers. Drivers of for-hire carriers may not per limit of age 70 was removed from the

28 Monthly Labor Review January 2004 ban on age discrimination in the Fair Em- district court for enforcement of the or- Notes ployment Practices Act. The prohibition der. Remedies available were specified. will now apply to all persons at least 40 These include: (1) requiring the employer, 1 All of the State legislatures met in regular years of age. employment agency or labor organization session in 2003. Delaware, Guam, Massachu- Revisions were made in the hearing to cease and desist from the discrimina- setts, Missouri, and New Hampshire did not en- procedures and remedies available under tory or unfair practice; (2) requiring re- act significant legislation in the fields covered the Fair Employment Practices Act. medial action which may include hiring, by this article. Information about Puerto Rico and the Virgin Islands was not received in time Among these, the hearing procedure will retaining, reinstating or upgrading of em- to be included in the article, which is based on now apply to employment agencies and ployees, referring of applications for em- information received by November 10, 2003. labor organizations as well as to employ- ployment by a respondent employment 2 Several tables displaying State labor law ers and employees. The Department of agency, or the restoration to membership information, including a table on State mini- Employment is to issue an order within by a respondent labor organization; (3) mum wage rates and a table on State prevailing 14 days of the hearing officer’s decision requiring the posting of notices and mak- wage laws, are available on the U.S. Depart- requiring compliance, and if the employer, ing reports as to the manner of compli- ment of Labor, Employment Standards Admin- employment agency or labor organization ance; or (4) requiring the employer, em- istration Web site at http://www.dol.gov/esa/ does not appeal or comply within 30 ployment agency or labor organization to programs/whd/state/state.htm days, the department may petition the pay back pay or front pay. 3 Ibid.

Monthly Labor Review January 2004 29