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presented by Jonathan A. Segal, Esq. PowerPoint Presentation
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presented by Jonathan A. Segal, Esq.

presented by Jonathan A. Segal, Esq.

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presented by Jonathan A. Segal, Esq.

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  1. 2013 State Law Legislative Updateprepared forPennsylvania SHRM 13th Legislative & Legal ConferenceApril 19, 2013 presented by Jonathan A. Segal, Esq. *No statements made in this seminar or in the PowerPoint or other materials should be construed as legal advice or as pertaining to specific factual situations. Further, participation in this seminar or any question and answer (during or after the seminar) does not establish an attorney-client relationship between Duane Morris LLP and any participant (or his or her employer). DM2/4179878.1

  2. *Current and proposed bills are examples only and not intended to be all inclusive. I. STATE TRENDS*

  3. CRIMINAL BACKGROUND CHECKS

  4. Criminal Background Checks • Current laws • Ban the Box: • Massachusetts • Philadelphia • Newark (most recent) • Others: • California: prohibitions on considering certain convictions • New York: certain enumerated factors that employers must consider

  5. Criminal Background Checks • Proposed laws (15 plus states) • Restrictions, for example: Rhode Island -- only after conditional offer of employment has been extended • Mandates, for example: proposals in some states for employees who will have unsupervised access to minors

  6. Criminal Background Checks • Title VII • Per se rules create commonality for class actions • EEOC Guidance • Individualized Assessments (Green factors) • Targeted Exclusions (tight nexus) • State law mandates not exempt from EEOC scrutiny but risks in not complying with state law mandates

  7. CREDIT REPORTS

  8. Credit Reports • Current law • 7 states have enacted restrictions • 3 states enacted restrictions in 2011 alone: CA, CN and MD

  9. Credit Reports • Proposed laws • Proposed bills in at least 15 states and District of Columbia • Examples: • PA: credit checks permitted for certain positions only (narrowly defined) • NJ: prohibits credit check as condition of employment

  10. Credit Reports • Title VII – adverse impact analysis • Per se rules create commonality for class actions • Apply holistic approach (individual v class claims) • Potential guidance from EEOC in the wings

  11. DISCRIMINATION LAWS

  12. Discrimination Laws • Examples of proposed bills: • Sexual Orientation: • Protected in 21 states (plus DC) already (private employers) • Proposed bills in Texas and (possibly) Pennsylvania, among other states • Gender Identity: • Protected in 16 states (plus DC) already (private employers) • Proposed bill in Hawaii, among other states [Hawaii already covers sexual orientation]

  13. Discrimination Laws • Examples of proposed bills: (continued) • Unemployed: • Current laws: New Jersey, Colorado and Oregon • Proposed bills: Pennsylvania and Ohio (among other states) • Domestic Violence Victim: • Current law: New York City • Proposed bill: Hawaii • Homelessness: • Current law: Rhode Island • Proposed bill: California

  14. Discrimination Laws • Multi-state issue • EEO Policy: benefit of inclusion versus risk of quasi contract • Recommendation: “Unlawful consideration of”

  15. PAID LEAVE BILLS

  16. Paid Leave Laws • Current paid leave laws include: • Connecticut: virtually all employers • Philadelphia: only certain contractors and subcontractors with the City of Philadelphia

  17. Paid Leave Laws • Proposed paid leave laws: • New York City • Philadelphia (almost all employers) • Passed by City Council • Veto by Mayor • Override by City Council failed

  18. BULLYING

  19. Bullying • No U.S. laws currently prohibit

  20. Bullying • Proposals include: • Maryland: Protection from “abusive work environments” without regard to protected status • Massachusetts: Protection from “bullying” without regard to protected status • Pennsylvania: Cohen bill to be proposed

  21. Bullying • HR practices • Address in training • Harassment • Performance management • Take corrective action • But be careful of policy

  22. IMMIGRATION

  23. Immigration • Mandatory E-verify • Approximately 20 states mandate use of E-verify in some circumstances • All employers: Arizona • Some employers: Pennsylvania (state contractors and subcontractors) • Supreme Court has upheld the right of states to regulate in this area if regulation relates to license to do business (not unlimited right)

  24. Immigration • Activity in 2012 • 3 states enacted legislation applying to state contractors and subcontractors: Michigan, Pennsylvania and West Virginia • 5 states modified existing laws (for example, South Carolina created unauthorized work hotline)

  25. Immigration • Proposals in many states—required use of E-verify • Majority approach: state contractors and subcontractors • Minority approach: all employers

  26. Immigration • Immigration self-audits • Focus: missing, incomplete or excess information • Corrective action (contemporaneous dating) • Summary memo

  27. WEAPONS IN VEHICLES

  28. Weapons in Vehicles • Currently: approximately 20 statesprotect, to some degree, the right of employees to have firearms in their motor vehicles (Florida and Texas, for example)

  29. Weapons in Vehicles • Proposals (examples only) • Tennessee: hand gun in car so long as not visible • Pennsylvania: firearm in or onvehicle

  30. SAME SEX MARRIAGE

  31. Same Sex Marriage • Lawful in 9 states plus: Connecticut, District of Columbia, Iowa, Maine, Maryland, Massachusetts, New Hampshire, Vermont and Washington

  32. Same Sex Marriage • States that may follow the trend: California, Illinois, Minnesota, New Jersey, Oregon and Rhode Island

  33. Same Sex Marriage • Issues for employers, include, but are not limited to: • Health and other insurance • FMLA (definition of spouse) • Bereavement and other policies

  34. RIGHT TO WORK

  35. Right to Work • Right to refrain from union membership (or to pay dues) where union in place

  36. Right to Work • Before 2012, 22 states were right to work states

  37. Right to Work • 2012: 2 more right to work states • Indiana • Michigan

  38. Right to Work • Proposed legislation in: • Pennsylvania • Ohio • Wisconsin

  39. SOCIAL MEDIA

  40. Social Media • Issue: prevent employers from requiring or even asking applicants or employees to disclose social media passwords

  41. Social Media • Prohibitions in employment context passed in 4 states in 2012, including Maryland, Illinois, Michigan and California (2 more states passed in educational context only)

  42. Social Media • Bills pending in many states, including Connecticut, Delaware, Maine, Minnesota, New Jersey, New York, Pennsylvania, Texas and Utah

  43. Social Media • Legal risks even in the absence of legislation (for example, Stored Communications Act)

  44. MINIMUM WAGE

  45. Minimum Wage • 19 states and the District of Columbia have minimum wages higher than federal minimum wage ($7.25)

  46. Minimum Wage • Proposals to increase minimum wage in Pennsylvania: • Set amount • COLA increases

  47. II. WHAT WERE THEY THINKING?

  48. Indiana Spiteful gossiping is unlawful in Indiana.

  49. New Jersey It is unlawful to wear a bullet proof vest while trying to kill someone.

  50. West Virginia Road kill may be taken home for supper.