California: New Laws Expand Coverage of Workplace Smoking Prohibitions

E-Cigarettes Included in Workplace Smoking Prohibitions

Several recent pieces of legislation, generally effective on June 9, 2016, expand coverage of California’s workplace smoking prohibitions.

Electronic Cigarettes NoVaping.gif

  • A new law recasts and broadens the definition of “tobacco product” under state law to include electronic cigarettes. By broadening the definition of “tobacco products,” the new measure extends existing laws that relate to tobacco products (e.g., workplace smoking laws) to electronic cigarettes.
    • Note: The law also states that certain retailers of tobacco products (including electronic cigarettes), which are not subject to a tobacco tax, must apply for a license and pay an annual license fee of $265, beginning January 1, 2017. Additional details and obligations are described in the law.

Workplace Smoking Prohibitions Expanded

  • An additional measure amends the state’s workplace smoking law to cover additional places. Key changes include the following:
    • Owner-Operated Businesses. The law extends the workplace smoking prohibition to include owner-operated businesses in which the owner-operator is the only worker and there are no employees, independent contractors, or volunteers.
    • Covered Parking Lots. The law expands the definition of “enclosed space” where smoking is prohibited to include covered parking lots.
    • Guestroom Accommodations. The law reduces to 20% (from 65%) the amount of guestroom accommodations in a hotel, motel, or similar transient lodging establishment in which smoking is allowed.
    • Additional Smoke-Free Locations. The measure eliminates several exemptions in the law which (until June 9, 2016) allow the smoking of tobacco products in certain work environments. As such, the smoking of tobacco products is prohibited at the following locations:
      • Hotel or motel lobbies;
      • Meeting and banquet rooms in a hotel or motel;
      • Warehouse facilities;
      • Gaming clubs;
      • Bars and taverns;
      • Employee break rooms; and
      • Businesses with a total of 5 or fewer employees.

Employers may review the text of the new laws regarding electronic cigarettes and workplace smoking for additional details.


NYC Releases Guidance on Pregnancy Discrimination

Guidance Clarifies Violations and Accommodations Under the Law

New York City has released guidance that clarifies violations of pregnancy protections under the New York City Human Rights Law, and provides examples of when and how covered employers should make accommodations for employees based on pregnancy, childbirth, or a related medical condition.

The New York City Human Rights Law, generally applicable to employers with 4 or more employees, prohibits unlawful discrimination in employment on the basis of (among other things) pregnancy or perceived pregnancy, through its prohibitions on discrimination based on gender. It also requires employers to reasonably accommodate the needs of an employee for her pregnancy, childbirth, or related medical condition.

Among other things, the guidance:NYC-Pregnancy-11x17.gif

  • Outlines specific violations of pregnancy protections under the law in employment, including firing or refusing to hire or promote employees because they are pregnant;
  • Requires employers to accommodate reasonable requests from employees related to pregnancy, childbirth, or a related medical condition (e.g., allowing employees to eat at their desks, providing seating, arranging for light duty or desk duty assignment, transferring workers to other available positions, and allowing for unpaid leave to recover from childbirth);
  • Specifies what an employer must prove in order to deny an accommodation, such as undue hardship or that an employee would not be able to satisfy the essential requisites of a job even with a reasonable accommodation;
  • Clarifies that employees undergoing fertility treatment, who have had abortions or miscarriages, or who are breastfeeding are entitled to reasonable accommodations under the law;
  • Requires employers to initiate and engage in a “cooperative dialogue” with employees when the employer is on notice that an employee is in need of an accommodation based on pregnancy, childbirth, or a related medical condition; and
  • Discusses an employer’s obligation to provide notice regarding pregnancy protections.

The guidance was issued on May 6, 2016. Click here to read the guidance.


Tennessee Law Requires Certain Large Employers to Use Federal E-Verify Program

Requirement Begins January 1, 2017

A new law in Tennessee requires employers with 50 or more employeesto use the federal E-Verify program to verify the work authorization status of employees.

U.S. law requires companies to employ only individuals who may legally work in the United States—either U.S. citizens or foreign citizens who have the necessary authorization. E-Verify is an Internet-based system that allows businesses to determine the eligibility of their employees to work in the United States. Use of E-Verify is mandatory for certain federal contractors. Certain private companies may also be required by state law to use E-Verify.

Tennessee law generally requires employers with 6 or more employees to verify the employment eligibility of employees and nonemployees (such as independent contractors). Employers may verify employee eligibility using the federal E-Verify program or request and maintain an identity or employment authorization document, such as a passport, birth certificate, or valid alien registration.

New Law
Under the new law, employers with 50 or more employees must enroll in and use the federal E-Verify program to verify the work authorization status of employees hired on or after January 1, 2017.

Employers who enroll in and utilize the E-Verify program must maintain a record of any results generated by the program. The E-Verify program only verifies the eligibility of employees, not nonemployees; documents are required for nonemployees.

Click here for more information and other provisions of the law.


DOL Updates Salary and Compensation Levels Required for FLSA ‘White Collar’ Exemption

Changes Effective December 1, 2016

The U.S. Department of Labor (DOL) has released a final rule, effectiveDecember 1, 2016, to update the regulations governing which executive, administrative, and professional employees (referred to as “EAP” or “white collar” workers) are entitled to the federal Fair Labor Standards Act’s (FLSA) minimum wage and overtime pay protections.

Current Rules
The FLSA provides an exemption from both minimum wage andovertime pay for employees employed as bona fide executive,administrative, and professional employees (among others). The current regulations implementing the exemption have generally required each of three tests to be met for the exemption to apply:

  1. The employee must be paid a predetermined and fixed salary that is not subject to reduction because of variations in the quality or quantity of work performed (the “salary basis test“);
  2. The amount of salary paid must meet a minimum specified amount, the current level for which is not less than $455 per week, or $23,660 per year (the “salary level test“); and
  3. The employee’s job duties must primarily involve executive, administrative, or professional duties as defined by the regulations (the “duties test“).

“Highly-compensated employees” (HCEs) who are paid total annual compensation of $100,000 or more and meet certain other conditions are also deemed exempt.

Note: Job titles never determine exempt status. Receiving a particular salary, alone, does not indicate that an employee is exempt. Rather, in order for a white collar exemption to apply, an employee’s specific job duties and earnings must meet all of the applicable requirements provided in the regulations.

Key Changes
A comparison table of the current regulations, proposed rule, and final rule has been provided by the DOL. Among other things, the final rule:

  • Sets the standard salary level at the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census Region (rather than on national data as originally proposed), resulting in a salary level of $913 per week or $47,476 annually for a full-year worker;
  • Sets the HCE total annual compensation level equal to the 90th percentile of earnings of full-time salaried workers nationally, consistent with the DOL’s original proposal ($134,004 annually);
  • Establishes a mechanism for automatically updating the salary and compensation levels every 3 years, beginning on January 1, 2020 (rather than annual updates as originally proposed); and
  • Amends the regulations to allow employers to use nondiscretionary bonuses, incentives, and commissions to satisfy up to 10% of the new standard salary level, so long asemployers pay those amounts on a quarterly or more frequent basis.

The DOL is not making any changes to the current duties tests. For more information, please refer to the DOL’s website on the final rule, which offers employers comprehensive resources including fact sheets, Q&As, guidance for businesses, and more.


Georgia: Franchisees Generally Not Considered Employees of Franchisors

Law Effective January 1, 2017

A new law in Georgia amends certain state labor laws to provide that a franchisee—or a franchisee’s employee—generally will not be deemed to be an employee of the franchisor for any purpose. However, the amendment does not apply to the state’s workers’ compensationprovisions.

Note: As the new measure amends certain labor laws, affected employers are advised to read the law in its entirety and consult a knowledgeable employment law attorney with any questions regarding the law’s impact on workplace policies and practices.

The law is effective January 1, 2017. Click here to read the text of the law.


OSHA Requires Certain Employers to Electronically Submit Injury and Illness Data

Fact Sheet and FAQs Available

The U.S. Occupational Safety & Health Administration (OSHA) has issued a final rule that (among other things) requires certain employers toelectronically submit injury and illness data.

Under OSHA’s recordkeeping regulation, employers with more than 10 employees and whose establishments are not classified as a partially exempt industry generally must record work-related injuries and illnesses that meet certain criteria using OSHA Forms 300, 300A, and 301. In addition, such employers are required to post Form 300A,Summary of Work-Related Injuries and Illnesses, from February 1 – April 30 of each year. Employers with 10 or fewer employees—regardless of their industry classification—are exempt from the requirement to routinely keep records of worker injuries and illnesses.

Final Rule
The new rule, generally effective January 1, 2017, requires certain employers to electronically submit injury and illness data to OSHA that they are already required to record on their OSHA injury and illness forms, as follows:

  • Establishments with 250 or more employees in industries covered by the recordkeeping regulation must submit information from their2016 Forms 300A by July 1, 2017. These same employers will be required to submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018. Beginning in 2019, the information must be submitted by March 2.
  • Establishments with 20-249 employees in certain high-risk industriesmust submit information from their 2016 Forms 300A by July 1, 2017, and their 2017 Forms 300A by July 1, 2018. Beginning in 2019, the information must be submitted by March 2.
  • Establishments with fewer than 20 employees at all times during the year do not have to routinely submit information electronically to OSHA (however, employers with more than 10 employees and whose establishments are not classified as a partially exempt industry must otherwise comply with applicable OSHA recordkeeping provisions).

Note: OSHA “State Plan” states must adopt requirements that are substantially identical to the requirements in the final rule within 6 months after the rule’s publication (listed as May 12, 2016).

Further details and requirements are contained in the final rule. Additional resources, such as a fact sheet and FAQs, are available by clicking here.



Vermont Enacts Statewide ‘Ban the Box’ Law


Law Effective July 1, 2017

A new law in Vermont, effective July 1, 2017, places certain restrictions on employers’ criminal record inquiries.

‘Ban the Box’ Provisions

  • An employer is generally prohibited from requesting criminal history record information on its initial employee application form.
  • An employer may inquire about a prospective employee’s criminal history record during an interview or once the prospective employee has been deemed otherwise qualified for the position.
  • If an employer inquires about a prospective employee’s criminal history record information, the prospective employee (if still eligible for the position under applicable law) must be afforded an opportunity to explain the information and circumstances regarding any convictions, including post-conviction rehabilitation.


  • An employer may inquire about criminal convictions on an initial employee application form if the following conditions are met:
    • The prospective employee is applying for a position for which any federal or state law or regulation creates a mandatory or presumptive disqualification based on a conviction for one or more types of criminal offenses; or the employer (or an affiliate of the employer) is subject to an obligation imposed by any federal or state law or regulation not to employ an individual (in either one or more positions) who has been convicted of one or more types of criminal offenses; and
    • The questions on the application form are limited to the types of criminal offenses creating the disqualification or obligation.

Additional details are contained in the text of the law. A press release is also available.



Utah: New Law Excludes Franchisors as Employers Under Certain State Labor Laws

Law Effective May 10, 2016

Under a new law in Utah, a franchisor is generally not considered to be an employer of a franchisee—or a franchisee’s employee—under certain state labor laws, including:

  • Payment of wages;
  • Minimum wage;
  • Workers’ compensation;
  • Employment discrimination; and
  • Unemployment insurance.

However, employers should note that the rule above does not apply to a franchisor under a franchise that exercises a type or degree of controlover the franchisee (or the franchisee’s employee) not customarily exercised by a franchisor for the purpose of protecting the franchisor’s trademarks and brand.

Note: The new measure also amends certain other laws. As such, affected employers are advised to read the law in its entirety and consult a knowledgeable employment law attorney with any questions regarding the law’s impact on workplace policies and practices.

The law is effective May 10, 2016. Click here to read the text of the law.


Pennsylvania: Medical Marijuana Law Addresses the Workplace

Law Effective May 17, 2016

A new Pennsylvania law, effective May 17, 2016, establishes a state medical marijuana program. Certain provisions of the law that affect employment are presented below:

  • Employers are generally prohibited from discharging, threatening, refusing to hire or otherwise discriminating or retaliating against an employee regarding his or her compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.
  • The law does not:
    • Require an employer to make any accommodation of the use of medical marijuana on the property or premises of any place of employment;
    • Limit an employer’s ability to discipline an employee for being under the influence of medical marijuana in the workplace or for working while under the influence of medical marijuana when the employee’s conduct falls below the standard of care normally accepted for that position; or
    • Require an employer to commit any act that would put the employer or any person acting on its behalf in violation of federal law.
  • A medical marijuana patient can be prohibited by an employer from:
    • Performing any task which the employer deems life-threatening—to either the employee or any other employees—while under the influence of medical marijuana; or
    • Performing any duty which could result in a public health or safety risk while under the influence of medical marijuana.
      • Note: The prohibitions above will not be deemed adverse employment decisions even if they result in financial harm for the patient.

The law contains additional provisions. Click here to read the text of the law.