Brownstein Client Alert, July 22, 2019
States are passing laws in 2019 that will have an immediate impact on how employers recruit, hire and onboard employees. Employers should make sure their recruiters and HR professionals are aware of these changes and are taking the necessary steps to be compliant.
New Colorado and New Mexico Laws:
Colorado and New Mexico have joined the ever-growing list of jurisdictions that have enacted ban-the-box legislation. Under Colorado’s new law, employers are generally prohibited from (1) stating in an advertisement for an employment position that a person with a criminal history may not apply; (2) stating on an employment application that a person with a criminal history may not apply; or (3) inquire into, or require disclosure of, an applicant’s criminal history on an initial employment application. New Mexico’s statewide law prohibits an inquiry regarding an applicant’s history of arrest or conviction on an employment application. The law, however, permits employers to take a conviction into consideration post-application and “upon discussion of employment with the applicant.”
To comply with these new laws, employers should update job postings to omit any language regarding background checks (i.e., language such as, “job contingent upon a successful background check.”) Employers may also want to develop an updated process if they intend to require employees to submit to pre-employment background checks after a conditional offer of employment.
Colorado Equal Pay for Equal Work Act: Colorado’s Equal Pay for Equal Work Act establishes that employers cannot seek the wage rate history of a prospective employee or rely on the wage rate history of a prospective employee to determine a wage rate, and that employees of one sex cannot be paid a lesser wage than an employee of a different sex for substantially similar work. This law applies without regard to job title. If a wage differential exists, an employer is burdened to show that the wage differential is based upon one of the following: a seniority system; a merit system; a system that measures earnings by quantity or quality of production; the geographic location where the work is performed; education, training or experience (though they must be reasonably related to the position at hand); or travel, if travel is regular and necessary. The Equal Pay for Equal Work Act takes effect Jan. 1, 2021.
New Nevada Law:
Positive Drug Test for Marijuana: Effective Jan. 1, 2020, Nevada employers are legally barred from failing to hire a prospective employee because he or she tested positive for marijuana on a pre-employment drug test effective Jan. 1, 2020. The law does not apply to positions for firefighting, emergency medical technicians, motor vehicle operations or safety-sensitive positions. Marijuana remains illegal under federal law.
New York and Washington Laws:
Mandatory Sexual Harassment Trainings: Jurisdictions continue to pass laws requiring mandatory sexual harassment training. Beginning Jan. 1, 2020, every hotel, motel, retail or security guard entity or property services contractor in the state of Washington must provide mandatory sexual harassment training to all managers, supervisors and employees. Additionally, the state of New York requires its sexual harassment training to be completed by Oct. 9, 2019, for all employees. As sexual harassment training laws continue to be passed in numerous jurisdictions, this is an important area for employers to make sure that they are complying with the changing laws.
What Should Employers Do?
The first course of action is to make sure your handbook or policies are compliant with the current state of the law. You should also train recruiters and HR professionals on these updates.
Finally, we recommend that you closely monitor state law developments in all states in which you are operating so that your company remains compliant with the evolving law.
This document is intended to provide you with general information regarding state employment laws passed in 2019. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions.