Tag Archives: Arizona

Paid Sick Leave? Ban The Box? Pregnancy? Equal Pay? Smoker Retaliation Poster? Here’s Your State Employment Law Update

Contributed by Heather Bailey

Reminder: EEO-1 Surveys Due To Be Filed By September 30th! 

US Map

Arizona:  In July, the Attorney General confirmed that the AZ smoking restrictions do not apply to e-cigs.

California: Employers, get ready to start having to offer paid sick leave beginning July 1, 2015 if you aren’t already!  See our September 16, 2014 post for more details.  Also, beginning January 1, 2015, unpaid interns and volunteers are getting the same nondiscrimination and harassment treatment as paid workers, including non-harassment training.

Connecticut:  Starting October 1, 2014, workers may obtain certificates of rehabilitation related to their arrests and convictions of which employers are prohibited from retaliating against employees and applicants when they present one for initial or continuing employment.

Delaware:  Your minimum wage increased to $7.75 per hour on June 1, 2014!

Illinois:  In case you missed our other blog posts, effective January 1 2015, Illinois joined the ranks of the “Ban the Box” campaign, which prohibits employers (with 15 or more employees) from asking applicants about criminal records on a job application.  You cannot do so until they have either been selected for an interview or been given a conditional offer of employment (with a few select exceptions).  Also effective January 1, the Illinois Human Rights Act related to pregnancy was expanded (more than any other state) so employers must now reasonably accommodate any condition related to pregnancy.

Indiana:  On September 2, 2014, the right to work law was upheld once again – this time by the 7th Circuit Court of Appeals.

MassachusettsPlease note your minimum wage hikes: January 1, 2015, $9 per hour ($3 an hour for tipped employees); $10 an hour ($3.35 for tipped employees) on January 1, 2016, and to $11 ($3.75 for tipped) beginning January 1, 2017.

Michigan: Your minimum wage increased to $8.15 per hour on September 1, 2014.

Missouri: The Missouri Supreme Court recently held that the state’s statutory cap on punitive damages is unconstitutional as is applied to certain common law claims. (Lewellen v. Franklin, case SC92871). The holding is limited to common law causes of action that existed when the Missouri Constitution was adopted in 1820.  In the short-term, this decision may raise the cost of litigation as plaintiff’s attorneys will undoubtedly try to add common law claims to employment lawsuits hoping that the threat of unlimited punitive damages will result in more generous settlements.  However, given that traditional common law claims have been increasingly difficult to sustain in the employment context and have been largely supplanted by statutory and more recently-recognized common law actions, Lewellen is ultimately unlikely to raise the stakes for Missouri employers.  Read more about this here.

New Hampshire:  Beginning January 1, 2015, employers have a new mandatory poster requirement for equal pay and smoker rights non-retaliation, as well as, employers may not prohibit employees from discussing pay wages or retaliate against them for doing the same.

Oklahoma:  OK jumped on the band wagon by prohibiting employers from requiring employees to give up their personal social media log-ons and passwords, effective November 1, 2014.

Vermont: Vermont’s smoking ban includes at least 25 feet from buildings and entrances.  Your minimum wage obligations also increase: January 1, 2015 = $9.15 per hour; January 1, 2016 = $9.60; January 1, 2017 = $10 and January 1, 2018 = $10.50.  All tipped employees must be paid at least one-half of the minimum wage effective January 1, 2015.

Multi-State Employers: Do These New State Laws Pertain To You?

Contributed by Heather Bailey

Arizona Min. WageBe sure you’ve increased minimum wage to $7.80.

California Criminal Background Checks:  Effective January 1, 2013, if you perform background checks by obtaining state criminal history information, you must start giving applicants  a copy of their state summary criminal history information – promptly – if this information played a part in any adverse action like not hiring them for the job.

Florida Min. Wage:  Minimum wage now equals $7.79 per hour.

Georgia Criminal Records:  In July, arrest and criminal records access is going to change. For example, access will no longer be for any arrest and employers must supply either fingerprints or detailed information regarding the individual, such as full name, address, Social Security number, race, sex, and date of birth, which is accompanied by a signed consent on a form approved by the Georgia Bureau of Investigation’s Crime Information Center.

Illinois Workplace Violence Initiative:  The Illinois Chamber of Commerce is actively working on legislation that will give employers an avenue to get temporary restraining orders when persons cause threat of violence in the workplace.   Stay tuned for this much needed legislation!

Michigan Employee Private Social Media:  In December 2012, Michigan joined the bandwagon of prohibiting employers from requiring employees and applicants to give up their social media logins and passwords and from taking adverse action against them should they not comply with the request.  Effective March 28, 2013, Michigan will become one of our nation’s right to work states.  So, generally, employers cannot require employees to join or remain a member of a union.  Finally, you may now be able to collect a minimal administrative fee (i.e., $1-$2) for child support garnishments each time a deduction is made.

Missouri Min. Wage:  Minimum wage is raised to $7.35 an hour – be sure you’ve made this increase!

New Jersey Posting Requirements:  If you have 50 or more employees, there are new notice and posting requirements in place from the New Jersey Department of Labor and Workforce Development and Department of Law and Public Safety’s Division on Civil Rights for gender equality in the workforce and anti-discrimination.

Vermont Min. Wage: Your minimum wage went up too – $8.60 per hour.

State laws change every day.  Make sure you are aware of them all for the states in which you have employees!

NLRB Loses Challenge to Arizona Law Guarantying Secret Ballot Elections

Contributed by Terry Fox

Arizona citizens passed a state constitutional amendment in 2010 guarantying secret balloting in union elections. This citizen initiative was a response to the National Labor Relations Board’s  suggestion it would conduct “card check” elections despite the failure of the Employee Free Choice Act.  When that amendment took effect, the board sued in federal court for a judgment declaring the Arizona Constitutional Amendment was preempted by the National Labor Relations Act. 

The NLRB argued that it alone had the right to determine election issues, and that power was granted by the federal government.  Thus, it asserted the Arizona Amendment was contrary to the National Labor Relations Act because it gave Arizona State courts the right to determine issues in a union election conducted in Arizona. 

In the order issued by U.S. District Court Judge Frederick J. Martone, [2:11-cv-00913-FJM] the court found that the illegality of the Arizona Amendment could not be decided on the face of that amendment.  Instead, the court would require evidence of how, when, and where the Amendment would be invoked.  It pointed out that the NLRB has the discretion to exercise its jurisdiction in election disputes or not.  Arizona argued that its interests in a secret ballot election are “deeply rooted in local feeling and responsibility,” such that a balancing of interests is required to determine if state action offended the regulatory scheme imposed by the NLRA.  That, the court found, requires a factual context.  As such, the court denied the NLRB’s motion for summary judgment and instead entered summary judgment for the state of Arizona. 

Not surprisingly, the Arizona Attorney General Tom Horne issued a press release describing the decision as a “stinging rebuke to an outrageous National Labor Relations Board attack.” To avoid card-check elections organized or sanctioned by the NLRB, states may want to consider enacting similar legislation or constitutional amendment.  Interestingly, three other states passed amendment similar to Arizona’s, but the NLRB only targeted Arizona for litigation. The formal title of the case is National Labor Relations Board v. State of Arizona and Save Our Secret Ballot, et al.

Supreme Court Agrees to Review Arizona’s Controversial Immigration Law

Contributed by Sara Zorich

In its Petition for Writ of Certiorari filed on August 10, 2011, the state of Arizona requested that the Supreme Court review the Ninth Circuit’s prior decision to enjoin four provisions of Arizona’s Immigration law on the basis that:

  1. The case was of extraordinary importance with regard to a national issue;
  2. The Ninth Circuit’s decision created a circuit split regarding the preemptive effect of the federal immigration laws;
  3. The Ninth’s Circuit’s decision to enjoin the Arizona law was wrong based on the law.

The four provisions of the Arizona law enjoined by the Ninth Circuit in July 2011 included:

  • Section 2 (B) – requiring law-enforcement officials to determine the immigration/citizenship status of anyone who is stopped, detained or arrested;
  • Section 3 – making it a state crime to be unlawfully present in the United States;
  • Section 5 (C) – making it a state crime for any “unauthorized alien” to apply for or perform work in Arizona;
  • Section 6 – authorizing warrantless arrests of aliens by law enforcement if they have probable cause to believe the person has committed an offense that could subject them to deportation. 

On December 12, 2011, the US Supreme Court granted Arizona’s request and has agreed to review Arizona’s immigration law.  The high court will decide whether the enjoined provisions of Arizona’s immigration law, SB 1070, are preempted by federal law.  The Supreme Court’s decision will likely have a sweeping impact on a state’s ability to implement immigration laws to supplement those implemented by Congress.  Of note, Justice Kagan will take no part in the consideration or decision of the issue based on her prior work with the Obama administration.

Supreme Court Upholds E-Verify Mandate in Arizona: Is Mandatory E-Verify Coming to Illinois?

Contributed by Sara Zorich

On May 26, 2011 in a 5-3 decision, the U.S. Supreme Court upheld that the Legal Arizona Workers Act of 2007’s mandatory E-Verify provision did not conflict with the Immigration Reform and Control Act (“IRCA”) and that the licensing conditions imposed under the law were not preempted by IRCA or federal law.

The court’s decision gives the green light for other states, whom have not already done so, to pass mandatory E-Verify laws so long as the state law fits within the confines of the federal law. Illinois does not currently require employers to use E-Verify and state legislatures have been resistant to the entire concept. Time will tell, but this decision could prompt the introduction of mandatory E-Verify legislation in many other states.

The Legal Arizona Workers Act of 2007 requires that, after hiring an employee, the employer must verify the employee’s employment eligibility through E-Verify. The court held that the Arizona law did not conflict with federal law because the consequences of not using E-Verify under the Arizona law were the same as under federal law – an employer forfeits an otherwise available rebuttable presumption of compliance with immigration laws. Moreover, the court noted that the Arizona law did not expand the rights of the state since the law expressly prohibits state investigators from attempting to independently make a final determination on whether an alien is authorized to work in the U.S. and mandates that any employment verification be done with the federal government.

Furthermore, the Arizona law instructs courts to suspend or revoke the business licenses of in-state employers that knowingly or intentionally employ unauthorized aliens. The Supreme Court held that this provision was within the state’s authority under IRCA and fit within the IRCA savings clause since it did not impose “civil or criminal sanctions” but instead imposed licensing conditions on businesses operating in Arizona.