Please join us to learn about the growing trend of state initiatives expanding employee protections and implementing new employer requirements. These affect many aspects of the employment relationship, including recruiting, hiring, training, leave, accommodation, compensation, and dispute resolution. We will discuss recently enacted and upcoming employment law changes by topic and state. We will help employers, especially those with multi-state operations, prepare for and comply with these developments.

1. Attention Employers with Multi-
State Operations - State
Employment Laws Ripe for Change
January 23, 2019

2. Presenter
Otto W. Immel
Partner and Florida Labor & Employment
Group Chair
otto.immel@quarles.com
(239) 659-5041
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3. Driving Force Behind the States’ Actions
• Inaction by Federal Government
• Federal Minimum Wage has not increased since July 2009
• “Me Too” Movement
• Publicity of sexual harassment claims has pressured states to change
the way companies litigate, settle, and disclose claims of sexual
harassment
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4. Major Areas Where Changes Are Occurring
• Minimum Wage
• Minimum Salary to be Exempt from
Overtime Requirements
• Anti-Harassment Training
• Prohibition of Confidentiality Clauses in
Settlements of Sexual Harassment
Claims
• Prohibition of Requiring Arbitration of
Sexual Harassment Claims
• Time Off for Victims of Crimes
• Prohibition of Non-Disclosure/Waiver
Provisions in Employment Contracts that
Prospectively Limit or Preclude the
Disclosure of Sexual Harassment Claims
• Mandatory Disclosure of Sexual
Harassment claims, settlements, etc.
• Cooperative Dialogue Regarding
Reasonable Accommodations
• Permissive Change of Schedule due to
Personal Event
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5. Federal Minimum Wage Under the FLSA
• In 1938, a generally applicable Minimum Wage of $0.25 was implemented under the
Fair Labor Standards Act.
• Over the years, there have been numerous increases. The table below depicts the
most recent increases. The most recent increase was in 2009.
Effective Date Minimum Hourly Wage
October 1, 1996 $4.75
September 1, 1997 $5.15
July 24, 2007 $5.85
July 24, 2008 $6.55
July 24, 2009 $7.25
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6. State Minimum Wage Increase
• Due to the lack of increases to the Federal Minimum Wage,
states have taken the inaction into their own hands and
implemented increases on the state level.
• Twenty-nine states have implemented minimum wages in excess
of the federal minimum.
• Twenty-one states are increasing their minimum wage for 2019.
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7. States Increasing their Minimum Wage for 2019
State 2019 Minimum Wage (Effective Date)
Alaska $9.89 (1/1/19)
Arizona $11.00 (1/1/19)
Arkansas $9.25 (1/1/19)
California $12.00 (1/1/19)
Colorado $11.10 (1/1/19)
Delaware $8.75 (1/1/19); $9.25 (10/1/19)
District of Columbia $14.00 (7/1/19)
Florida $8.46 (1/1/19)
Maine $11.00 (1/1/19)
Massachusetts $12.00 (1/1/19)
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8. States Increasing their Minimum Wage for 2019
State 2019 Minimum Wage (Effective Date)
Minnesota $9.86 (1/1/19)
Missouri $8.60 (1/1/19)
Montana $8.50 (1/1/19)
New Jersey $8.85 (1/1/19)
New York $11.10 (12/31/18)
Ohio $8.55 (1/1/19)
Oregon $11.25 (7/1/19)
Rhode Island $10.50 (1/1/19)
South Dakota $9.10 (1/1/19)
Vermont $10.78 (1/1/19)
Washington $12.00 (1/1/19)
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9. State Minimum Wage Increase
• In addition to state-wide minimum wage increases, many cities and
municipalities have enacted minimum wages in excess of their respective
states.
• Some states assign the minimum wage based on the size and location of
the employer.
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10. Minimum Salary for Overtime Exemption
• Under both federal and state law, employees who work over 40 hours per
workweek are entitled to overtime pay unless the employee is exempt
from this requirement.
• The Fair Labor Standards Act (federal law)
• To be deemed exempt from overtime requirement, an employee must make more
than $455 a week or $23,660 annually.
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11. Minimum Salary for Overtime Exemption
• New York
• As of December 31, 2018, New York raised the minimum salary exemption for
“administrative” and “executive” employees.
Minimum Salary for New York Exemption
Location 12/31/17 12/31/18
NYC – Big Employers (11+) $975 per week or $50,700 annually $1,125/week or $58,500 annually
NYC – Small Employers (10-) $900 per week or $46,800 annually $1,012.50/week or $52,650
annually
Long Island & Westchester $825 per week or $42,900 annually $900/week or $46,800 annually
Remainder of New York State $780 per week or $40,560 annually $832/week or $43,264 annually
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12. Minimum Salary for Overtime Exemption
• California
• Employees must be paid a monthly salary that is at least twice the state
minimum wage for full-time employment.
• Minimum wage is set to increase annually over the next few years.
• For both employers with more than 25 employees and those with 25 or less
employees
• Chart on next slide depicts the minimum salary requirements for
overtime exemption over the upcoming years:
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13. Minimum Salary for Overtime Exemption
• California
Minimum Annual Salary for Exempt Employees (By Year)
Year Employers w/ < 25 Employers w/ 26 +
2018 $43,680 $45,760
2019 $45,760 $49,920
2020 $49,920 $54,080
2021 $54,080 $58,240
2022 $58,240 $62,400
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14. Anti-Harassment Training
• Many states have enacted laws requiring certain Anti-Harassment training
by employers:
• California
• Colorado
• Connecticut
• Maine
• New Mexico
• New York
• Some states just have requirements for
state employees: Florida, Nevada, New
Jersey, North Carolina, Pennsylvania,
Tennessee, Texas, Utah
• All other states either recommend or
encourage training, but do not require it
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15. Anti-Harassment Training
• California
• Companies with 50+ employees must provide training to all supervisors
within six months of hiring or promotion.
• Frequency: Must be re-trained every two years
• Additional requirements: training must be effective and interactive
• As of 2018, an included requirement for that portion of the anti-
harassment training must focus on gender identity, gender expression,
and sexual orientation.
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16. Anti-Harassment Training
• Connecticut
• Companies with 50 or more employees must provide training to all
supervisors within six months of hiring or promotion.
• Frequency: Encouraged to re-train every three years, but not required
by law
• Additional requirements: Training sessions must last at least two hours
and must include experiential exercises and discussing the perpetual
and communicational differences among all persons.
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17. Anti-Harassment Training
• Delaware
• Employers with 50+ employees must provide sexual harassment
training to new employees within 1 year of employment, existing
employees within 1 year of effective date of act, and every two years
thereafter.
• Maine
• Employers with 15+ employees must train all employees about sexual
harassment within one year of beginning their employment.
• Supervisors and managers must get additional training within one year
of assuming their positions.
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18. Anti-Harassment Training
• New Mexico
• Requires primary and secondary education providers to train all school
personnel at least once a year
• New York
• As of October 19, 2018, all employers, regardless of size, are required
to give annual sexual harassment training and have a written sexual
harassment policy.
• The legislation sets forth minimum standards for the sexual harassment
prevention policy.
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19. Confidentiality/Non-Disclosure Provisions in Settlement Agreements
• Tax Cuts & Jobs Act (federal law)
• Contains provisions that prohibit employers from taking a deduction for
attorneys’ fees and costs incurred in any sexual harassment or sexual abuse
case if the settlement agreement includes a non-disclosure provision
• California
• As of Jan. 1, 2019, settlement agreements that include a provision precluding an
individual from disclosing factual information related to claims of sexual assault
or harassment or discrimination will not be permitted.
• The claimant can request such a provision, but the accused has no similar
protection.
• Does not limit ability to keep the settlement amount confidential
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20. Confidentiality/Non-Disclosure Provisions in Settlement Agreements
• New Jersey
• Bill pending that would ban the use of confidentiality provisions in any
settlement agreement that attempts to conceal discrimination,
retaliation, or sexual harassment.
• If they add a confidentiality provision to a settlement, the employer
must include a prominent notice that the clause is unenforceable.
• Bill also prohibits retaliation for refusing to sign a nondisclosure clause.
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21. Confidentiality/Non-Disclosure Provisions in Settlement Agreements
• New York
• Confidentiality clauses in settlement agreements relating to claims of
sexual harassment are prohibited unless preferred by complainant.
• Requires 21 day consideration, and 7 day revocation
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22. Arbitration Provisions in Employment Contracts
• New York
• Arbitration clauses relating to sexual harassment claims are prohibited.
• New Jersey
• Bill pending makes any provision in any employment contract that
waives any substantive or procedural right or remedy relating to a claim
of discrimination, retaliation, or harassment unenforceable.
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23. Arbitration Provisions in Employment Contracts
• Vermont
• Prohibits employment agreements that require claims of sexual
harassment to be resolved through arbitration
• Washington
• Voids ability to enforce contracts or agreements that waive an
employee’s rights to publicly file complaints regarding sexual
harassment and sexual assault
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24. Waiver of Claims/Non-Disclosures as Condition of Employment
• Maryland
• Disclosing Sexual Harassment in the Workplace Act of 2018
• Effective October 1, 2018, Maryland precludes provisions in employment
contracts that waive rights to future claims of sexual harassment or retaliation
for reporting sexual harassment.
• Tennessee
• Prohibits requiring an employee, or prospective employee, to sign or
renew a non-disclosure agreement regarding sexual harassment in the
workplace as a condition of employment
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25. Waiver of Claims/Non-Disclosures as Condition of Employment
• Washington
• Prohibits signing of non-disclosure agreements regarding sexual
harassment and sexual assault as a prerequisite for employment
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26. Mandatory Disclosure of Sexual Harassment Allegations
• Maryland
• Disclosing Sexual Harassment in the Workplace Act of 2018
• Requires employers with 50+ employees to disclose: the number of
settlements made after sexual harassment allegations; number of settled
allegations of sexual harassment against the same employee; and the number
of settlements of sexual harassment complaints that included non-disclosure
provisions
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27. Questions on Employment Applications
• Criminal History
• Commonly referred to as “Ban the Box”
• 31 states have adopted statewide laws or policies regarding delaying
inquiries into an applicant’s criminal records until later in the hiring
process.
• 11 states have mandated the removal of conviction history questions
from job applications for private employers.
• California, Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey,
Oregon, Rhode Island, Vermont, and Washington
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28. Questions on Employment Applications
• Salary History
• Massachusetts
• Connecticut
• Hawaii
• California: weaker protection – provides that prior salary alone cannot,
by itself, justify pay disparity
Cities with restrictions:
• New Orleans
• New York City
• Philadelphia
• Pittsburgh
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29. Questions on Employment Applications
• Salary History
• According to the National Conference of State Legislatures, the
following states are considering similar legislation:
• Delaware
• Georgia
• Iowa
• Idaho
• Illinois
• Maryland
• Maine
• Mississippi
• Montana
• North Carolina
• New Jersey
• Oregon
• Rhode Island
• Texas
• Virginia
• Pennsylvania
• Vermont
• Washington 29

30. Family Leave
• Federal Family Medical Leave Act allows for: 12 weeks of unpaid leave
during a 12 month period to care for a newborn, adopted, or foster child,
care for a family member, or to attend the employee’s own serious medical
health condition
• Applies to employers with 50+ employees
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31. Paid Family Leave
States with Paid Family Leave:
• California
• New Jersey
• New York
• Rhode Island
• Washington
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32. Paid Family Leave
• California
• Applies to employees who have worked for an employer for at least 12
months and who have 1,250 hours of service during the 12 months
prior to the leave
• Provides up to 6 weeks of paid leave to care for a seriously ill child,
spouse, parent, or registered domestic partner, or to bond with a new
child
• Benefit is approximately 55% of the employee’s weekly wage
• Funded through employee-paid payroll taxes
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33. Paid Family Leave
• New Jersey
• Applies to employees who have worked 20 calendar weeks or who have
earned at least 1,000 times the state minimum wage during the 52
weeks prior to leave
• Provides up to 2/3 of wages up to $524/week for 6 weeks
• Runs concurrently with FMLA or NJFLA (New Jersey’s unpaid Family
Leave)
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34. Paid Family Leave
• New York
• Applies to all private employers for those employees who are either full
or part time and have worked 26 or more consecutive weeks for a
covered employer. Public employers have the option to opt in.
• The maximum leave allowed during a 52 week period is increased
annually, starting with 8 weeks as of January 1, 2018 and 10 weeks as
of January 1, 2019.
• The maximum benefit amount is 50% of an employee’s average weekly
wage or 50% of the state average weekly wage. The maximum benefit
percentage increases annually: 55% in 2019, 60% in 2020.
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35. Paid Family Leave
• Rhode Island
• Applies to all private sector employers and public sector employers who
opt into the program
• Provides 4 weeks paid leave for the birth, adoption, or fostering of a
new child or to care for a family member with a serious health
condition, and up to 30 weeks of paid leave for a worker’s own
disability
• Maximum benefit is $752 per week based on earnings
• Funded by employee payroll taxes
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36. Paid Family Leave
• Washington
• Requires employers to provide 12 weeks of paid time off for the
birth/adoption of a child, or for the serious medical condition of the
employee or the employee’s family members
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37. Paid Sick Leave
• States that require employers to provide paid sick leave for their
employees:
• Arizona
• California
• Connecticut
• Maryland
• Massachusetts
• New Jersey
• Oregon
• Rhode Island
• Vermont
• Washington
• Washington D.C.
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38. School-Related Parental Leave
• The following states have enacted legislation allowing parents leave to
participate in their children’s educational activities:
• California
• Colorado
• D.C.
• Illinois
• Louisiana
• Massachusetts
• Minnesota
• Nevada
• North Carolina
• Rhode Island
• Vermont
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39. Recent Stances on Sexual Orientation & Gender Identity Discrimination
• Michigan
• Governor issued an executive directive on January 7, 2019 barring state
employers from discriminating against public employees and applicants
on the basis of sex (which includes sexual orientation and gender
identity or expression).
• Wisconsin
• Governor issued executive order on January 7, 2019 banning
discrimination against state workers on the basis of their sexual
orientation or gender identity.
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40. Less Common Legislation
• Victim Time Off
• New York City
• As of 5/5/18, New York City employers must allow the use of paid leave for
employees if they, or a family member, have been a victim of any act or threat
of domestic violence, unwanted sexual contact, stalking, or human trafficking.
• Applies to employers with 5 or more employees
• Requires 40 hours per calendar year of safe time or sick leave
• Vermont
• Provides time off for employees who are victims of crimes
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41. Less Common Legislation
• Fair Workweek Law
• New York City
• Employees may request a temporary change to their work schedule,
up to two times a year, for a “personal event.” “Personal Event”
includes the need to provide care for a minor child or care recipient,
attend a legal proceeding or hearing for subsistence benefits, any
circumstances that would be a basis for use of safe time or sick leave
under the earned safe and sick time act.
• Employees can alter their hours, times, or locations for a limited
period of time.
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42. Less Common Legislation
• Cooperative Dialogue Regarding Reasonable Accommodations
• New York City
• Employers are required to engage in cooperative dialogue regarding
requests for reasonable accommodations for victims of domestic
violence, individuals with pregnancy or related conditions, religious
needs, and disabilities.
• Failure to engage in this dialogue amounts to unlawful
discriminatory practice in violation of New York City Human Rights
Law.
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43. Less Common Legislation
• Veteran Leave
• Massachusetts
• Requires private employers to grant leave, paid or unpaid, for
Memorial Day or Veterans day to an employee who is a veteran
• “Mini-WARN”
• Delaware
• Requires employers with 50+ employees to provide 60 days’ notice
to affected employees, Delaware Dept. of Labor, and Delaware
Workforce Board, of mass layoffs, plant closings, or relocations that
will cause employment loss
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44. © 2019 Quarles & Brady LLP - This document provides information of a general nature. None of the information contained
herein is intended as legal advice or opinion relative to specific matters, facts, situations or issues. Additional facts and
information or future developments may affect the subjects addressed in this document. You should consult with a lawyer about
your particular circumstances before acting on any of this information because it may not be applicable to you or your situation.
QUESTIONS ?
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45. THANK YOU
Otto W. Immel
Partner and Florida Labor & Employment
Group Chair
otto.immel@quarles.com
(239) 659-5041
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