State of the States: Recent Developments Signal Significant Increase in Pace of State and Local Measures

January 12, 2018

Nondisclosure agreements, paid leave, employee scheduling, and many other issues are in the crosshairs of state and local activists as 40 state legislatures reconvene in January, generating a flurry of new bills.  Read more in the most recent Littler State of the States report.

Nondisclosure Agreements (New York, Pennsylvania, California) Governor Cuomo of New York announced last week that he will propose a package of bills intended to remedy sexual harassment in the workplace, including voiding mandatory arbitration agreements; mandating that any company doing business with the state disclose the number of sexual harassment adjudications and nondisclosure agreements they have executed; and prohibiting public dollars from being used to settle sexual harassment claims.  The New York legislature, meanwhile, is already considering measures (SB 6382A, AB8765) that would prevent the enforcement of certain nondisclosure agreements (NDAs) relating to a claim of discrimination, harassment, non-payment of wages or benefits, and retaliation.  A bill pending before the Pennsylvania Senate (SB 999) focuses more specifically on NDAs in the sexual harassment context.  It would void contracts executed after the effective date that meet certain requirements.  A new California measure (SB 820) also seeks to eradicate secrecy in settlement agreements.  Under this proposal, settlement agreements could be invalidated to enable parties to present underlying facts in a subsequent civil action.  

Paid Sick Leave (Prince George’s County, Maryland; Tacoma, Washington; Pennsylvania; Albuquerque, New Mexico) Prince George’s County, Maryland recently enacted a paid sick and safe time law, which is scheduled to take effect May 24, 2018.  The law entitles workers to accrue one hour of leave time per 30 hours worked, up to 40 hours per year.  The City of Tacoma, Washington formally amended its paid sick leave law and interpretive regulations.  The final rules are intended to align the city’s code with the State of Washington’s more generous paid sick leave statute, which took effect January 1, 2018.  The Pennsylvania Supreme Court, meanwhile, has agreed to hear a challenge to the City of Pittsburgh’s paid sick leave law.  Lower courts invalidated the ordinance, finding that the city lacked the authority to enact a law imposing such obligations on private employers.  The Albuquerque City Council has introduced an ordinance that would require employers with 50 or more employees in the city to offer paid sick leave beginning January 1, 2019.  Employees could earn one hour of leave for every 40 hours worked and could use leave for sick and safe time purposes, including the care of a child or spouse.  

Other Protected Time Off (Wisconsin, South Carolina, New Jersey) Wisconsin lawmakers are examining a proposal (AB 772) that would limit the scope of the state’s family and medical leave law.  The bill, currently before the labor committee, provides that the state family and medical leave law would not apply to employers that: (1) are required to comply with the federal version, or (2) elect to provide leave consistent with the federal law to employees who are not eligible for leave.  The South Carolina House is reviewing a proposal (HB 4442) that would entitle workers to paid leave associated with school activities.  Under this bill, employers with school-aged children (K-12) must permit workers to take leave of up to eight hours per year to attend school conferences, activities, or meetings.  Both chambers of the New Jersey legislature have approved a measure (AB 2294) that would expand civil rights protections for breastfeeding employees.  It outlaws discrimination against such workers and requires employers to provide reasonable accommodations to breastfeeding employees, including reasonable break times and suitable, private spaces for lactation.

Employee Scheduling (New York City, Seattle) The New York City Council is working on a significant addition to fair scheduling regulations passed in November that would authorize employees to take two temporary schedule changes each year for “personal events.”  Employers would be obligated to accommodate schedule changes, for example, for an employee to tend to a caregiving emergency, certain legal proceedings, or any event that would qualify for the use of leave time under the city’s sick or safe time act.  Seattle also updated its secure scheduling ordinance to clarify employer coverage.  The revision stresses that all employees who work for compensation must be included when determining the size of an employer, including employees working outside Seattle’s city boundaries, temporary employees, and employees retained through a staffing agency.

Preemption (Wisconsin)  Wisconsin lawmakers have introduced a measure (SB 634) that would ban local governments from adopting or enforcing ordinances concerning employment matters.  Prohibited regulatory topics would include: (1) employment discrimination; (2) wage claims and collections; (3) employee hours, overtime, and scheduling; (4) employee benefits; and (5) an employer’s right to seek salary history information from job applicants.  SB 634 is currently under committee review.