Regulatory Wrap-Up: Organized retail crime enters the roundup
Wages
Colorado: The house-passed legislation that would have allowed localities to increase their minimum wage levels beyond the statewide rate of $10.20/hr failed in a senate committee and will not advance.
Delaware: Following the defeat in March of senate legislation to increase the state’s minimum wage to $9.25/hr, legislators are working on a new bill that would increase the wage to $10.25 by 2021. The vote in March failed by only one vote due to a senator’s concern over the impact to casinos in his district. A casino tax relief bill has passed the senate and awaits action in the house which, if passed, could drive enough support for the wage increase. It remains to be seen if this legislation will advance.
Missouri: The group “Raise Up Missouri” submitted roughly 120,000 signatures in support of a November ballot initiative to raise the state’s minimum wage. The state will now begin the process of certifying the signatures. The proposal would raise the wage level to $12/hr by 2023 and raise the tip credit to half of the minimum wage.
Anaheim, Calif.: A labor union representing Anaheim hospitality workers, including Disneyland and area hotels, announced they have collected enough signatures to place an initiative on the November ballot increasing the city’s minimum wage. If certified and passed, the initiative would raise the minimum wage for hotels that receive city tax subsidies to $15/hr, rising to $18/hr by 2022 with future increases tied to cost of living.
Paid Leave
Hawaii: Following the advancement of several paid leave bills throughout the session, the legislature voted to further study the issue instead of implementing a new program. The analysis is due in September 2019 and will study the impacts of different paid leave models and their costs for both businesses and employees. This action effectively tables the issue for the year.
Maine: The governor vetoed a paid leave bill that had been amended during session to require an actuarial study of the proposed program instead of enacting the program itself.
New Jersey: Governor Murphy signed the paid leave bill into law. The law allows employees to take a maximum of 40 hours of leave per year and includes a preemption on local leave ordinances, blackout dates as set by employers and an exemption for seasonal workers. The bill’s effective date is 180 days after the governor acts, which is now projected to be Oct. 29.
Vermont: The house-passed paid leave bill was amended and passed through its first senate committee. The amended bill lengthens the amount of leave time offered to 12 weeks for parental leave and reduces the amount paid out to employees taking leave. The bill still has to pass through two committees, the full senate and the changes would have to be agreed to by the house. The legislature is set to adjourn May 12. Given the short time frame, lack of consensus and the fact that the governor has said he would veto the legislation, it remains unlikely that the bill becomes law.
Albany County, N.Y.: The county legislature will hold a public hearing on a paid leave proposal that requires employers to provide one hour of paid leave for every 30 hours worked with a maximum allowance of 72 hours per year depending on the number of employees. The hearing is scheduled for May 29.
Austin, Texas: Attorney General Ken Paxton joined the lawsuit against the city’s recently-passed paid sick leave law. The lawsuit, originally brought by business interests in the city, argues that the paid leave ordinance is in violation of the state’s established minimum wage preemption law.
Wage Theft
Rosa Mexicano: The company, owned by private equity firm Goode Partners, settled a 2016 lawsuit for $3.6 million that alleged that they implemented a tip pooling policy which violated federal law among other wage related charges.
Scheduling
Connecticut: A second attempt to pass scheduling mandate legislation failed in the senate this week. A bill that would impose penalty pay for changes to an employee’s schedule within 24 hours was amended to another bill and ultimately voted down.
Philadelphia, Pa.: Members of the city council, business representatives and labor interests held a closed-door roundtable to debate a potential scheduling mandate. No legislation has been drafted or introduced and further action could be delayed until fall, following the council’s budget debate and summer recess
Pay Equity
Philadelphia, Pa.: A federal judge blocked the city from implementing parts of its recently-passed law banning salary history questions from an employer’s interview and hiring practices. The judge cited free speech violations in preventing employers from asking about past salaries but left in place the prohibition against employers relying on past salary information to set current salaries. Similar pending litigation in other jurisdictions could be impacted.
Vermont: A bill banning employers from inquiring about salary history during the hiring process passed both chambers of the legislature and is expected to be signed by the governor.
Labor Policy
NLRB: Several state attorneys general have asked the National Labor Relations Board to rule that purposefully misclassifying workers as independent contractors to avoid compliance with federal labor laws constitutes a felony offense.
California: The state Supreme Court issued a landmark ruling that effectively applies a more rigid test for determining whether a given worker should be classified as a direct employee or as an independent contractor. The new test establishes that workers can be classified as independent contractors if the worker is "free from control and direction over performance of the work;” the work is “outside the usual course of the business for which the work is performed,” and; the worker is “customarily engaged in an independently established trade, occupation or business.” The decision will affect hundreds of other employee classification cases moving through the legal system. It will also impact wide-ranging industry sectors from “gig economy” companies like Uber and Lyft and food delivery drivers to short haul truckers at the nation’s busiest ports in southern California.
Starbucks: The company reached an undisclosed financial settlement with the two individuals who were arrested for trespassing at a Philadelphia location. The two men also settled with the city of Philadelphia for a symbolic $1 and an additional $200,000 for a grant program for high school students aspiring to become entrepreneurs.
Data Security
Colorado: A bill that expands the requirements for notification in the event of a breach of personal data passed both chambers and advances to the governor.
New Jersey: A bill to expand data breach notification requirements will be heard in a house committee this week. The bill has been introduced several times in the past but never acted upon. Among other changes to the existing breach notification law, businesses would no longer be able to provide notification through substitute notice which is permitted for certain breaches of security. If passed, businesses would need to provide written or electronic notice in the event of a breach.
Taxes
Hawaii: A conference committee deferred action on language modeled after the South Dakota economic nexus standard for sales tax collection purposes. The bill will not move forward this session.
Kentucky: Language that expands the definition of a retailer in the state for sales tax collection purposes was included in a larger tax package. The tax package ultimately survived a veto from the governor and will be enacted into law. The language resembles a requirement first passed by New York in 2009 and applies to sellers who generate more than $10,000 in sales into the state through an “affiliated” Kentucky-based agent.
Organized Crime
Tennessee: Legislation that increases the recommended sentence for participation, financing and/or supervision of organized retail crime, as defined in current law, passed both chambers and heads to the governor for an expected signature. The bill also requires pawn shops and other second-hand stores to report the resale of gift cards (via the established gift card database) to law enforcement within 24 hours.
Key Takeaways
Legislature Status for Week of 5/7/18
Podcast
Check out our Working Lunch podcast each week that includes further analysis into these legislative issues, policy, politics and much more. You can find Working Lunch on the Nation's Restaurant News website, or by clicking here, and when you download the podcast and subscribe on iTunes here.
Colorado: The house-passed legislation that would have allowed localities to increase their minimum wage levels beyond the statewide rate of $10.20/hr failed in a senate committee and will not advance.
Delaware: Following the defeat in March of senate legislation to increase the state’s minimum wage to $9.25/hr, legislators are working on a new bill that would increase the wage to $10.25 by 2021. The vote in March failed by only one vote due to a senator’s concern over the impact to casinos in his district. A casino tax relief bill has passed the senate and awaits action in the house which, if passed, could drive enough support for the wage increase. It remains to be seen if this legislation will advance.
Missouri: The group “Raise Up Missouri” submitted roughly 120,000 signatures in support of a November ballot initiative to raise the state’s minimum wage. The state will now begin the process of certifying the signatures. The proposal would raise the wage level to $12/hr by 2023 and raise the tip credit to half of the minimum wage.
Anaheim, Calif.: A labor union representing Anaheim hospitality workers, including Disneyland and area hotels, announced they have collected enough signatures to place an initiative on the November ballot increasing the city’s minimum wage. If certified and passed, the initiative would raise the minimum wage for hotels that receive city tax subsidies to $15/hr, rising to $18/hr by 2022 with future increases tied to cost of living.
Paid Leave
Hawaii: Following the advancement of several paid leave bills throughout the session, the legislature voted to further study the issue instead of implementing a new program. The analysis is due in September 2019 and will study the impacts of different paid leave models and their costs for both businesses and employees. This action effectively tables the issue for the year.
Maine: The governor vetoed a paid leave bill that had been amended during session to require an actuarial study of the proposed program instead of enacting the program itself.
New Jersey: Governor Murphy signed the paid leave bill into law. The law allows employees to take a maximum of 40 hours of leave per year and includes a preemption on local leave ordinances, blackout dates as set by employers and an exemption for seasonal workers. The bill’s effective date is 180 days after the governor acts, which is now projected to be Oct. 29.
Vermont: The house-passed paid leave bill was amended and passed through its first senate committee. The amended bill lengthens the amount of leave time offered to 12 weeks for parental leave and reduces the amount paid out to employees taking leave. The bill still has to pass through two committees, the full senate and the changes would have to be agreed to by the house. The legislature is set to adjourn May 12. Given the short time frame, lack of consensus and the fact that the governor has said he would veto the legislation, it remains unlikely that the bill becomes law.
Albany County, N.Y.: The county legislature will hold a public hearing on a paid leave proposal that requires employers to provide one hour of paid leave for every 30 hours worked with a maximum allowance of 72 hours per year depending on the number of employees. The hearing is scheduled for May 29.
Austin, Texas: Attorney General Ken Paxton joined the lawsuit against the city’s recently-passed paid sick leave law. The lawsuit, originally brought by business interests in the city, argues that the paid leave ordinance is in violation of the state’s established minimum wage preemption law.
Wage Theft
Rosa Mexicano: The company, owned by private equity firm Goode Partners, settled a 2016 lawsuit for $3.6 million that alleged that they implemented a tip pooling policy which violated federal law among other wage related charges.
Scheduling
Connecticut: A second attempt to pass scheduling mandate legislation failed in the senate this week. A bill that would impose penalty pay for changes to an employee’s schedule within 24 hours was amended to another bill and ultimately voted down.
Philadelphia, Pa.: Members of the city council, business representatives and labor interests held a closed-door roundtable to debate a potential scheduling mandate. No legislation has been drafted or introduced and further action could be delayed until fall, following the council’s budget debate and summer recess
Pay Equity
Philadelphia, Pa.: A federal judge blocked the city from implementing parts of its recently-passed law banning salary history questions from an employer’s interview and hiring practices. The judge cited free speech violations in preventing employers from asking about past salaries but left in place the prohibition against employers relying on past salary information to set current salaries. Similar pending litigation in other jurisdictions could be impacted.
Vermont: A bill banning employers from inquiring about salary history during the hiring process passed both chambers of the legislature and is expected to be signed by the governor.
Labor Policy
NLRB: Several state attorneys general have asked the National Labor Relations Board to rule that purposefully misclassifying workers as independent contractors to avoid compliance with federal labor laws constitutes a felony offense.
California: The state Supreme Court issued a landmark ruling that effectively applies a more rigid test for determining whether a given worker should be classified as a direct employee or as an independent contractor. The new test establishes that workers can be classified as independent contractors if the worker is "free from control and direction over performance of the work;” the work is “outside the usual course of the business for which the work is performed,” and; the worker is “customarily engaged in an independently established trade, occupation or business.” The decision will affect hundreds of other employee classification cases moving through the legal system. It will also impact wide-ranging industry sectors from “gig economy” companies like Uber and Lyft and food delivery drivers to short haul truckers at the nation’s busiest ports in southern California.
Starbucks: The company reached an undisclosed financial settlement with the two individuals who were arrested for trespassing at a Philadelphia location. The two men also settled with the city of Philadelphia for a symbolic $1 and an additional $200,000 for a grant program for high school students aspiring to become entrepreneurs.
Data Security
Colorado: A bill that expands the requirements for notification in the event of a breach of personal data passed both chambers and advances to the governor.
New Jersey: A bill to expand data breach notification requirements will be heard in a house committee this week. The bill has been introduced several times in the past but never acted upon. Among other changes to the existing breach notification law, businesses would no longer be able to provide notification through substitute notice which is permitted for certain breaches of security. If passed, businesses would need to provide written or electronic notice in the event of a breach.
Taxes
Hawaii: A conference committee deferred action on language modeled after the South Dakota economic nexus standard for sales tax collection purposes. The bill will not move forward this session.
Kentucky: Language that expands the definition of a retailer in the state for sales tax collection purposes was included in a larger tax package. The tax package ultimately survived a veto from the governor and will be enacted into law. The language resembles a requirement first passed by New York in 2009 and applies to sellers who generate more than $10,000 in sales into the state through an “affiliated” Kentucky-based agent.
Organized Crime
Tennessee: Legislation that increases the recommended sentence for participation, financing and/or supervision of organized retail crime, as defined in current law, passed both chambers and heads to the governor for an expected signature. The bill also requires pawn shops and other second-hand stores to report the resale of gift cards (via the established gift card database) to law enforcement within 24 hours.
Key Takeaways
- Many state attorneys general as well as state courts are intent on broadening the definition of an employee to capture more independent contractors. The ruling in California this week could set many similar legal actions in motion across the country. This decision is being viewed as landmark and could dramatically change future business strategies for many companies as they look to leverage independent contractors, particularly for delivery drivers and short haul truckers at the nation’s ports.
- The decriminalization and broader use of marijuana, both medicinal and recreational, in a number of states is causing some employers to relax testing standards. Maine has banned employers from testing for marijuana and prevents employers from taking adverse action against employees for after-hours use. Other states are likely to consider following Maine’s path. Employers should be cognizant that this conversation is likely to escalate quickly and should be planning accordingly.
Legislature Status for Week of 5/7/18
- The United States Senate is in session this week
- The United States House is insession this week
- Eighteen state legislatures are meeting actively this week: Alaska, California, Colorado, Connecticut, Delaware, Illinois, Louisiana, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New York, Rhode Island, South Carolina, Vermont and Wisconsin.
Podcast
Check out our Working Lunch podcast each week that includes further analysis into these legislative issues, policy, politics and much more. You can find Working Lunch on the Nation's Restaurant News website, or by clicking here, and when you download the podcast and subscribe on iTunes here.
The Regulatory Wrap-Up is presented by Align Public Strategies. Click here to learn how Align can provide your brand with the counsel and insight you need to navigate the policy and political issues impacting retail.