United States: Employers Are Preparing Now To Tackle 2019's Newest Labor And Employment Laws

As 2018 draws to a close, employers are looking to the next wave of labor and employment laws and regulations that will take effect in 2019 and beyond. On January 1, and throughout the coming year, employers across the nation must address a host of new or amended federal, state, and/or local obligations. This article summarizes the laws and regulations taking effect in 2019 that will impact most employers, and highlights some anticipated activity in the coming months.

Federal Activity

The majority of labor and employment bills stalled in the 115th Congress. The most significant federal legislative development in 2018 that impacted employment law was Congress's omnibus budget bill, the Consolidated Appropriations Act ("the Act"). The Act amended the Fair Labor Standards Act by addressing rules affecting tipped employees and tip ownership. Specifically, the Act expressly prohibits an employer from keeping tips received by its employees for any purposes (this includes allowing managers or supervisors to keep any portion of employees' tips), regardless of whether the employer takes a tip credit.1

The Tax Cuts and Jobs Act, which was signed into law on December 22, 2017, impacts certain deductions and reporting provisions for 2018 in 2019. For example, the law eliminated, at least through 2025, the exclusion for employer-paid relocation expenses, the deduction for employer-paid transportation fringe benefits, and the business deduction for entertainment expenses.2

This tax law also included a provision that eliminates a business expense deduction related to nondisclosure agreements (NDAs) in connection with the settlement of sexual harassment claims. The law amends section 162 of the tax code, which generally allows businesses to deduct certain business expenses, to provide that no business expense deduction will be allowed for: (1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or (2) attorney's fees related to such a settlement or payment. This exclusion applies to amounts paid or incurred after December 22, 2017, the date the tax bill was enacted. As a practical matter, this new restriction means employers must decide on a case-by-case basis whether any amount paid to settle a sexual harassment claim is significant enough to be worth the tax deduction at the expense of an NDA.

Immigration policy and enforcement remains a Trump administration priority. Although no immigration-related bill advanced in 2018, employers will likely continue to see increased U.S. Immigration and Customs Enforcement activity and U.S. Citizenship and Immigration Services (USCIS) policy initiatives in response to White House directives on immigration.3 Further changes are anticipated from USCIS in 2019.4

For the most part, federal employment law activity has been confined to the regulatory arena. For example, the National Labor Relations Board (NLRB) issued a proposed rule in September that would reverse the NLRB's 2015 Browning-Ferris Industries decision and clarify the standard for joint employment.5 The comment period for the proposed rule will close on December 13, 2018; and a final rule is expected sometime in 2019. The DOL's Wage and Hour Division also may propose its own joint employer rule, a re-vamped "white collar" overtime proposed rule, and a rule clarifying the "regular rate" of pay calculation for purposes of overtime compensation.6 Some final rules will take effect immediately, while others might afford employers a compliance grace period.

State and Local Activity

While federal legislative developments may have been slow in 2018, state and local lawmakers picked up the slack. As the chart below demonstrates, states and municipalities have adopted new laws and ordinances that will take effect in 2019 on a variety of topics, including protected time off, sexual harassment training, and salary history inquiries.

Many new state and local laws enacted in 2018 have already taken effect. The chart below focuses only on those laws with effective dates in 2019 or later. Readers interested in keeping abreast of legislative activity at the state and local levels should follow State of the States, our monthly report featuring notable bills and trends percolating in the statehouses and city halls nationwide.7

Laws Taking Effect in 2019

The chart below briefly recaps laws and regulations that will become effective in the few remaining weeks of 2018 and in 2019. Although local and industry-specific laws may be listed, these samples are included primarily to highlight compliance challenges employers face. Further, this chart does not include all state and local minimum wage updates. A complete discussion of minimum wage rate changes for 2019 can be found in a separate Littler Insight to be published later this month. Because the below chart is only a summary and does not include all possibly applicable federal, state, and local laws, employers are encouraged to discuss with knowledgeable counsel the local, state, and/or federal laws that will apply to the employer's workplace in 2019.

Federal
Law Main Topic Summary Effective
Date
Executive Order 13658 Contractor Minimum Wage Increases to $10.60 per hour the wage rate that generally must be paid to workers performing work on or in connection with covered contracts; increases to 7.40 per hour the required minimum cash wage that generally must be paid to tipped employees performing work on or in connection with covered contracts. 1/1/2019
EBSA Rule on Moral Exceptions Benefits: Contraceptive Coverage These rules finalize expanded exemptions to protect moral beliefs for certain entities and individuals whose health plans are subject to a mandate of contraceptive coverage through guidance issued pursuant to the Patient Protection and Affordable Care Act. 1/14/2019
EBSA Rule on Religious Exceptions Benefits: Contraceptive Coverage These rules expand exemptions to protect religious beliefs for certain entities and individuals whose health plans are subject to a mandate of contraceptive coverage through guidance issued pursuant to the Patient Protection and Affordable Care Act. 1/14/2019
OSHA Rule on Crane Operators Construction: Training and Evaluation of Crane Operators Amends standards for construction employers concerning the training, certification or licensing, and evaluation of crane and derrick operators. Evaluation and documentation requirements take effect on February 7, 2019. 12/09/2018
Alaska
Law Main Topic Summary Effective
Date
HB 79 Workers' Compensation Amends Alaska Workers' Compensation Act to define and exclude independent contractors from the benefits of the act, and prevents discrimination against employees who in good faith filed a workers' compensation claim, but does not prohibit requiring applicants fill out a prior health or disability history form. 11/22/2018
California8
Law Main Topic Summary Effective
Date
AB 1654 PAGA Liability: Construction Employers Excludes construction employees from coverage under the state Private Attorneys General Act, if covered by a collective bargaining agreement that includes certain provisions, such as an express waiver. Remains in effect until January 1, 2028. 1/01/2019
AB 1976 Lactation Accommodation Amends lactation accommodation provisions to require employers to provide a location other than a bathroom to express milk. 1/01/2019
AB 2034 Human Trafficking Notice & Training Mandates updated notice to be posted by January 1, 2019 by numerous types of employers (public transportation, emergency rooms, hotels, rest areas, etc.). Requires training for certain mass transit employees by January 1, 2021. 1/01/2019
AB 22829 Salary History Amends the statewide salary history ban, adding guidance about the questions an employer may ask during an interview and when employers must disclose pay scales for positions. 1/01/2019
AB 233410 Workplace Safety Allows Cal/OSHA to issue recordkeeping citations for errors to logs, for up to five years. Empowers Cal/OSHA to consider enforcing electronic recordkeeping requirements if the federal agency ceases doing so. 1/01/2019
AB 2338 Sexual Harassment Training: Talent Agencies Requires agencies to distribute anti-harassment materials, along with information about nutrition and eating disorders. 1/01/2019
AB 2455 Home Care Aide Registry Authorizes disclosure of home care aide contact information to labor unions, upon request, after July 1, 2019. 1/01/2019
AB 2587 Family Temporary Disability Insurance Repeals the seven-day waiting period for the initial receipt of insurance benefits under the California family temporary disability insurance and the provision allowing employers to apply vacation leave to the waiting period. 1/01/2019
AB 2610 Commercial Driver Exception to Meal Period Laws For certain commercial drivers, requires a meal period after six hours of work, instead of five hours, if the driver is paid at 1.5 times the minimum wage and receives overtime compensation. 1/01/2019
AB 277011 Discrimination and Harassment: References Allows a former employer to state it would not rehire a former employee based on the employer's determination that the former employee engaged in sexual harassment. 1/01/2019
AB 2844 Insurance Broker Commissions Creates rebuttable presumption that commission is lawful if compliant with other provisions and paid per written agreement. 1/01/2019
AB 3109 Waivers of Right of Petition or Free Speech Provides that a contract or settlement agreement provision is void and unenforceable if it waives a party's right to testify about criminal conduct or sexual harassment committed by the other party. 1/01/2019
AB 3247 Arbitration Agreements Mandates that if a party to an arbitration agreement refuses to arbitrate, the court must order arbitration when petitioned by another party, unless grounds exist for rescission of the arbitration agreement. 1/01/2019
SB 224 Harassment Liability Amends Civil Code to impose liability on a defendant who "holds himself or herself out as being able to help the plaintiff establish a business, service, or professional relationship with the defendant or a third party," including elected officials, lobbyists, directors, and producers. 1/01/2019
SB 820 Non-Disclosure Agreements Prohibits confidentiality provisions in settlement agreements that would thwart disclosure of information related to claims of sexual assault, harassment, and discrimination. 1/01/2019
SB 826 Board of Directors Membership Mandates that publicly held corporations must have a set number of women on their board of directors, based on the number of individuals on the board. 1/01/2019
SB 1123 Paid Family Military Leave Amends the Family Temporary Disability Insurance Program to include time off for a servicemember to participate in a qualifying exigency related to a covered active duty. 1/01/2019
SB 1252 Wage Record Receipt Allows current and former employees to request a copy of their wage record that they can keep. 1/01/2019
SB 130012 Discrimination and Harassment Among other things, curtails an employer's ability to utilize non-disparagement clauses and certain waivers for claims asserted under the state Fair Employment and Housing Act. 1/01/2019
SB 1343 Sexual Harassment Training: General Requires employers with five or more employees to provide at least two hours of sexual harassment training to all supervisory employees and at least one hour of sexual harassment training to all nonsupervisory employees by January 1, 2020, and once every two years thereafter. 1/01/2019
SB 1402 Customer Liability in Labor Contracting: Port Drayage Establishes joint and several liability for customers who use or engage port drayage motor carriers if those carriers have unpaid wages, taxes, or workers' compensation claims. 1/01/2019
SB 1412 Criminal History Creates additional exemptions to the restriction on inquiring about an applicant's prior arrest and detention record. 1/01/2019
SB 1428 Employment of Minors Work permits may not be denied based on grades, GPA, or school attendance for minors seeking to participate in government-administered programs during school breaks. 1/01/2019
SB 1500 Discrimination Against Service Members Prohibits employers from discharging or halting benefits of an employee for being a member of the military reserve or because of ordered military duty or training. 1/01/2019
Oakland, Measure Z Hotel Worker Protections Amends Oakland municipal code to raise minimum wage for covered hotel employees, require employers to provide panic buttons, and limit mandatory overtime, among other items. Minimum wage increase takes effect in 2019, with potential regulations and enforcement mechanisms likely by 2020. 7/01/2019
AB 37513 Consumer Privacy Allows a consumer to request a business disclose the personal information it collects, the categories of sources that collect the information, the business purposes for collecting or selling the information, and the categories of third parties with which the information is shared. 1/01/2020
SB 97014 Human Trafficking Training: Hotels and Motels Requires hotels and motels subject to the Fair Employment and Housing Act (FEHA) to provide at least 20 minutes of training regarding human trafficking awareness to each employee likely to interact or come into contact with victims of human trafficking. 1/01/2020
SB 1121 Consumer Privacy Amends the new California Consumer Privacy Act (AB 375, above) to allow consumers to recover damages from a business if the business does not use reasonable security procedures to protect confidential information, and a breach occurs. 1/01/2020
Colorado
Law Main Topic Summary Effective
Date
HB 1186 Benefits: Contraceptive Coverage Requires health benefit plans to cover a multiple-months' supply of prescription contraceptives or contraceptive ring intended to last for a three-month period. 1/01/2019
Connecticut
Law Main Topic Summary Effective
Date
Conn. Gen. Stat. §§ 31-410 et seq.15 Mandatory IRAs Requires private-sector employers without their own workplace-based retirement plans to enroll employees in Individual Retirement Arrangements (IRAs) sponsored by the state. Per recent announcement, the law will be phased-in beginning in 2019. The requirement stems from legislation enacted in 2016. 1/01/2019
HB 5210 Benefits: Essential Health Care Requires insurance coverage of certain health benefits, and expands benefits for women and individuals age 21 and under to include coverage for preventive services and screenings, immunizations, and contraceptives. 1/01/2019
HB 538616 Salary History Inquiries Prohibits an employer from inquiring about an applicant's salary history before an offer of employment, unless the applicant voluntarily discloses such information. 1/01/2019
Delaware
Law Main Topic Summary Effective
Date
HB 36017 Sexual Harassment Protections and Training Requires employers with 50 or more employees to provide sexual harassment training to new employees within one year of employment, to existing employees within one year of the effective date of this act, and every two years thereafter. 1/01/2019
HB 483 Training and Youth Wages Creates a minimum training wage and youth wage of no more than $0.50 less than the state minimum wage. Training wage applies during the first 90 days of employment of an employee who is age 18 or older. 1/01/2019
HB 409 Mini-WARN Requires employers with 50+ employees to provide 60 days' notice to affected employees, the Delaware Department of Labor WARN Act Administrator, and the Delaware Workforce Development Board of mass layoffs, plant closings, or relocations that will cause employment loss. 1/07/2019
Hawaii
Law Main Topic Summary Effective
Date
SB 235118 Salary History Restrictions and Wage Transparency Prohibits employers from inquiring about an applicant's salary history or relying on that information when determining what compensation to offer the applicant. 1/01/2019
Illinois
Law Main Topic Summary Effective
Date
SB 2999 Expense Reimbursement Requires employers to reimburse employees for all necessary expenditures or losses directly related to services performed by the employer. 1/01/2019
SB 3547 Service Member Employee Reemployment Rights Act Prohibits employers from imposing conditions for military leave. Service members must provide notice of pending service to employers to take military leave. 6/01/2019
Massachusetts
Law Main Topic Summary Effective
Date
SB 2632 Unpaid Veterans Leave for Memorial Day and Veterans Day Amends prior leave law to require private employers to grant leave, paid or unpaid, for Memorial Day or Veterans Day to an employee who is a veteran. 11/08/2018
HB 464019 Minimum Wage, Sunday and Holiday Premium Pay, and State Paid Family Medical Leave Increases the minimum wage from $11 to $15 over five years, culminating in 2023. Gradually eliminates premium pay for retail employees on Sundays and holidays. Requires employers to provide paid family and medical leave to covered individuals. 1/01/2019
Michigan
Law Main Topic Summary Effective
Date
Adopted Ballot Measures20 Paid Sick and Safe Time, Minimum Wage Raise The Earned Sick Time Act requires all private employers with one or more employees to provide paid sick and safe leave. The Improved Workforce Opportunity Wage Act raises the minimum wage in yearly steps until January 1, 2023, and each subsequent January 1, when the minimum wage is increased based on inflation. These laws may be subject to amendment during the ongoing legislative session, and the effective date is uncertain. Approx. 4/01/2019
Approved Ballot Measure, Proposal 121 Marijuana Permits adult recreational possession, use, and cultivation of marijuana. Commercial growing, marketing, and sales will follow after regulations are developed. Approx. 12/06/2018
Minnesota
Law Main Topic Summary Effective
Date
Duluth Ordinance No. 15071 Paid Sick Leave Requires employers in Duluth with 5 or more employees to provide employees with one hour of earned sick and safe time for every 50 hours worked. 1/1/2020
Missouri
Law Main Topic Summary Effective
Date
Approved Ballot Measure, Amendment 222 Marijuana Authorizes qualifying residents or their caregivers to obtain identification cards to purchase marijuana, to alleviate the effect of certain medical conditions. Under this state constitutional amendment, application materials must be made available in June 2019. Approx. 6/04/2019
New Hampshire
Law Main Topic Summary Effective
Date
HB 1372 Subcutaneous Identification Devices Prohibits requiring, coercing, or compelling another individual to implant a subcutaneous identification device, either internally or externally. 1/01/2019
New Mexico
Law Main Topic Summary Effective
Date
HB 276 Statements of Withholding Requires employers to submit annual statements of withholding electronically to the state tax department. 1/01/2019
New York
Law Main Topic Summary Effective
Date
New York City Int. 0632-201823 Discrimination & Harassment Requires all private NYC employers with 15 or more employees to conduct annual anti-sexual harassment training. 4/01/2019
Westchester County Local Law 1062324 Paid Sick Leave Requires covered employers to allow eligible employees to accrue one hour of earned paid sick time for every 30 hours worked up to 40 hours per year. 4/10/2019
Ohio
Law Main Topic Summary Effective
Date
SB 22025 Cybersecurity Provides legal safe harbor to businesses that implement a program for protecting personal information that meets industry standards. 11/03/2018
Texas
Law Main Topic Summary Effective
Date
San Antonio Ordinance26 Paid Sick Leave Requires employers to provide one hour of earned sick time leave for every 30 hours worked within the City of San Antonio. Enforceability may be affected by pending litigation concerning the Austin paid sick law. 8/01/2019
Utah
Law Main Topic Summary Effective
Date
Approved Ballot Measure, Proposition 227 Marijuana Authorizes qualifying residents or their caregivers to obtain identification cards to purchase marijuana, to alleviate the effect of certain medical conditions. Under Proposition 2, cards must be issued no later than March 1, 2020. The Utah legislature may soon pass a bill to amend this measure. In flux
Washington
Law Main Topic Summary Effective
Date
SB 5975 Paid Family Leave 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. 12/31/2019
HB 2822 Service Animal Misrepresentation Amends Washington's discrimination law to clearly define "service animal," and creates a maximum penalty of $500 for misrepresenting an animal as a service animal. 1/01/2019
Seattle Ordinance, CB 11928628 Domestic Worker Ordinance Extends various protections (minimum wage, rest breaks) to domestic workers in Seattle. 7/01/2019

Footnotes

1 David Jordan and Eli Freedberg, DOL Clarifies Amendment to the FLSA's Tip Pool Rules, Littler ASAP (Apr. 12, 2018).

2 Ilyse Schuman, Tom Cryan, and Michael J. Lotito, What Notable Employment Provisions are in the Tax Bill?, Littler ASAP (Dec. 20, 2017).

3 See, e.g., Shireen Judeh, USCIS Publishes Policy Memorandum on H-1B Third-Party Worksite Requirements, Littler ASAP (Feb. 28, 2018); see also Shireen Karcutskie, New USCIS Policy Memo and Efforts to Combat Fraud in the H-1B Visa Program, Littler ASAP (Sept. 28, 2018); Shireen Karcutskie, USCIS Developments on the Discretion Afforded Adjudicators, and H-1B Premium Processing, Littler ASAP (Sept. 17, 2018); Sean M. McCrory and Jorge R. Lopez, ICE Worksite Enforcement Increases as Promised During Fiscal Year 2018, Littler ASAP (May 21, 2018).

4 See James A. Paretti, Jr., Michael J. Lotito, Tammy D. McCutchen, and Tessa Gelbman, Joint Employment, Wage and Hour Changes are on the Regulatory Horizon, Littler ASAP (Oct. 17, 2018) (noting that USCIS is working on 21 separate rules, including a proposed rule governing the H-1B program, as part of its regulatory agenda).

5 See James A. Paretti, Jr., Michael Pedhirney, and Michael J. Lotito, Proposed Joint-Employer Rule Would Reverse NLRB's Controversial Browning-Ferris Case and Restore "Substantial Direct and Immediate Control" Standard, Littler ASAP (Sept. 13, 2018).

6 See James A. Paretti, Jr., Michael J. Lotito, Tammy D. McCutchen, and Tessa Gelbman, Joint Employment, Wage and Hour Changes are on the Regulatory Horizon, Littler ASAP (Oct. 17, 2018).

7 Michael J. Lotito, WPI State of the States: What State and Local Measures Will Appear on the Ballot?, WPI Report (Nov. 1, 2018).

8 Bruce Sarchet, Corinn Jackson, and Betsy Cammarata, California's Newest Laws: It's Shocktober for Employers!, Littler Insight (Oct. 1, 2018).

[1] Alexandra Hemenway, California Provides Guidance Regarding Its Salary History Ban, Littler ASAP (Aug. 7, 2018); see also New and Already Improved! California Clarifies Its Salary History Ban, Littler Podcast (Aug. 21, 2018).

9 See Alka Ramchandani, Cal/OSHA Emergency Regulation on Injury and Illness Recording and Recordkeeping Will Require Certain Employer Action by December 31, 2018, Littler ASAP (Oct. 31, 2018) (explaining that, under the emergency regulations, certain employers must submit their Cal/OSHA 300 logs by December 31, 2018).

10 Bruce Sarchet, California Enacts a Privileged Communication Law Regarding Sexual Harassment Claims, Littler ASAP (July 12, 2018).

11 See also Do New California Restrictions on Confidentiality Provisions Tie Employer Hands on Releases and Other Employee Contracts?, Littler Podcast (Oct. 29, 2018).

12 Philip L. Gordon and Andrew Gray, Unraveling the Newest Development in the Data Protection Juggernaut: What Does the "California Consumer Privacy Act of 2018" Mean for Employers?, Littler Insight (July 9, 2018).

13 Michael Manoukian, Michael G. Congiu, Stefan J. Marculewicz, and Lavanga V. Wijekoon, California Enacts Two Laws Aimed At Combating Human Trafficking, Littler ASAP (Oct. 2, 2018).

14 Maura Mastrony, Connecticut to Implement Mandatory IRA Program for Private-Sector Employees in 2019, Littler ASAP (Oct. 22, 2019).

15 Christopher Neary and Sharon Bowler, Connecticut's New Pay Equity Bill Prohibits Questions Regarding Prospective Employees' Wage and Salary History, Littler ASAP (May 23, 2018).

16 Marissa L. Dragoo and Kevin P. O'Neill, Delaware Adopts Law Expanding Sexual Harassment Protections and Requiring Employee Training, Littler ASAP (Aug. 30, 2018).

17 William J. Simmons, Martha J. Keon and Judy M. Iriye, Hawaii Joins Salary History Ban Trend, Littler ASAP (July 6, 2018).

18 Chris Kaczmarek and Alice Kokodis, Massachusetts Increases Minimum Wage, Eliminates Premium Pay For Sunday Work, And Enacts New Paid Leave Program, Littler ASAP (June 29, 2018); see also Stephen Melnick, The Regular Rate Riddle in the Massachusetts "Grand Bargain" Legislation, Littler ASAP (July 3, 2018).

19 Michael Chichester, Jr., Anton Dirnberger, and Sebastian Chilco, From Ballots to Bills: Michigan Adopts Paid Sick and Safe Time Law and Raises the Minimum Wage, Littler Insight (Sept. 11, 2018).

20 Nancy Delogu and Betsy Cammarata, Voters in Michigan, Missouri, and Utah Expand Access to Marijuana, Littler Insight (Nov. 12, 2018).

21 Id.

22 Devjani H. Mishra and Emily C. Haigh, New York Sexual Harassment Laws - The City Commission Publishes Poster and Fact Sheet, Littler ASAP (updated Aug. 15, 2018).

23 Jill Lowell and Sebastian Chilco, Paid Sick Leave Changes in New York City and Westchester County Impact Empire State Employers, Littler Insight (Oct. 25, 2018).

24 Kwabena A. Appenteng, Fourth Quarter 2018 Workplace Privacy Update, Littler Insight (Sept. 17, 2018).

25 Melissa Ackie and Sebastian Chilco, Texas Two-Step: San Antonio Joins Austin in Mandating Paid Sick and Safe Leave; Then Court Enjoins Austin Law from Taking Effect During Appeal, Littler Insight (Aug. 21, 2018).

26 Voters in Michigan, Missouri, and Utah Expand Access to Marijuana, Littler Insight, supra note 21.

27 Jeremy Wood and Breanne Martell, Seattle Passes Ordinance to Expand Employment Rights to Domestic Workers, Littler ASAP (Aug. 27, 2018).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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