Sick Leave, Domestic Violence, “Bring Your Gun to Work,” Personnel Files, Ban the BoxTake 5 Newsletter November 12, 2013
This issue of Take 5 was written by Susan Gross Sholinsky, a Member of the Firm in Epstein Becker Green's New York office.
State and city legislatures throughout the country have been busy recently—passing a variety of laws affecting private employers. From sick leave to the right to bring guns to work, these laws will affect the way that employers do business from city to city and state to state, and will require changes to employee handbooks and other employment-related documents, such as employment applications. The following are just five examples of such laws.
- Sick Leave
New York City recently joined Portland, Oregon; San Francisco, California; Jersey City, New Jersey; Washington, D.C.; and the State of Connecticut in requiring sick leave for at least some workers. Similar legislation is currently pending in Vermont and Newark, New Jersey. Interestingly, in October 2013, the State of Pennsylvania, on the other hand, proposed legislation that, if passed, would prevent cities or other political subdivisions from enacting any law requiring vacation or any other type of leave, paid or unpaid, to employees. Sick leave laws have been unsuccessfully proposed in other places, such as Milwaukee, Wisconsin; Denver, Colorado; and Philadelphia, Pennsylvania. Similarly, the federal Healthy Families Act has been proposed more than once but has never been enacted.
Many of the sick leave laws that have been passed are similar to each other, in that most require employers to provide a certain amount of sick leave to employees, at least some of which is paid leave. Most of the laws require employers to allow employees to carry over unused days, but do not require employers to pay any sick days on termination of employment. The required leave generally can be used by employees for their own illnesses, as well as illnesses of family members. Finally, most of the laws provide that, if employers already maintain paid time off policies and those policies satisfy the requirements of the sick leave law, no additional leave is required.
- Domestic Violence Anti-Discrimination and Leave of Absence Laws
Several states, including Connecticut, Hawaii, Illinois, New York, Oregon, and Rhode Island have enacted legislation protecting victims of domestic violence in the workplace. Some of these laws include victims of domestic violence as one of the categories protected under the state's anti-discrimination laws, others provide unpaid time off to employees who need time off due to their status as the victim of domestic violence (such as to attend court proceedings), and some do both of these things. New Jersey recently joined the list with the passage of its Security and Financial Empowerment ("SAFE") Act.
Similarly, California's new law against discrimination based on an employee's status as the victim of domestic violence, which becomes effective January 1, 2014, also requires employers to provide certain reasonable accommodations for those who experience stalking, such as changing a work telephone number or changing locations within the office. Certain municipalities, including New York City and Westchester County, New York, mandate similar reasonable accommodations. As with several other topics addressed in this Take 5, federal legislation has been proposed, but never passed, on this topic.
- "Bring Your Gun to Work" Laws
Illinois recently became the twenty-third state to enact legislation relating to whether employees may bring a firearm to the workplace. This genre of laws has come to be known as "bring your gun to work" laws or "parking lot" laws (since many states' laws provide that guns brought to the workplace must remain in the employee's locked trunk or glove box in his or her car).
These laws have faced scrutiny, especially from large private employers. For example, in the recent battle over Tennessee's concealed carry law at the workplace, several large employers argued that employers, like homeowners, should be allowed to decide whether guns are allowed on private property. The employers lost out, as Tennessee's parking lot gun law is now on the books.
"Bring your gun to work" laws vary. Florida's law, for example, prohibits employers from asking employees if they have a gun in the parking lot and protects employees from adverse employment actions on the basis of gun ownership. Other states' laws, however, provide significant exceptions to an employee's right to carry a firearm at the workplace. Employers in Georgia, for example, may require employees to keep weapons locked up in a certain manner and may prohibit leaving a gun in a parking lot if the lot is private property.
- Personnel File Laws
Connecticut recently joined the ranks of states with personnel file laws. These laws, among other things, may provide employees with the right to inspect personnel files within a certain time frame after the request. Other such laws specify which types of documents must be maintained as part of a "personnel file." Connecticut's law goes so far as to require employers to advise employees of their right to dispute certain negative performance documentation.
Legislation varies by state, and many states' laws pertain only to public employers. Similar to Connecticut's law, the personnel file law in Massachusetts (one of the states where protections apply to private employers) provides that if a Massachusetts employee disagrees with the content of the personnel record, he or she may contest the information. Several other states' laws, such as those in Delaware, Illinois, Maine, Minnesota, Nevada, Oregon, Pennsylvania, and Washington, require private employers to allow employees access to their personnel files. California's law, among other things, provides that, in addition to current employees, former employees also have the right to access, view, and copy personnel records.
- Ban the Box
Finally, the "ban the box" movement has been gaining steam in many states and cities around the United States. This movement seeks to eliminate the "Have you ever been convicted of a crime?" question from employment applications, so as to allow a job applicant to be judged on the merits of his or her application, without permitting the employer to consider criminal convictions (or arrests, where such questions are legal) until later on in the hiring process. This is significant, since, according to the National Employment Law Project, one in four adults have some type of criminal record that would show up on a routine background check.
While some states have "banned the box," municipalities and county governments have led the way on enacting such legislation. More than 50 city or local governments have passed legislation prohibiting employers from asking about criminal convictions on the initial employment application. Most of the laws, however, pertain only to public employment. On the private employer side, Seattle, Washington, recently expanded its "ban the box" legislation to include private employers. Similarly, "ban the box" laws in Buffalo, New York; Newark, New Jersey; and Philadelphia, Pennsylvania, apply to private employers. As of the date of this Take 5, the only states with "ban the box" legislation that applies to both public and private employers are Hawaii, Massachusetts, and Minnesota.