State Legislative Updates and Trends in Employment Law

by David James and Joe Schmitt

David James Joe Schmitt

In light of gridlock in Washington, many states – particularly those controlled by Democratic legislatures – have been passing new employment laws. While trends often begin on the coasts, momentum often brings them to the more conservative heartland as well.  Here we have highlighted three such movements to be aware of.

Minimum Wage
While the federal minimum wage remains unchanged, states have been raising their minimum wage with increasing regularity and in greater amounts.  Of course, employers are responsible for complying with the more generous of federal and state law, so in this case, the federal minimum wage is becoming increasingly obsolete. 

Following are the states with minimum wages above federal law, along with their 2023 rate:
Alaska ($10.85); Arkansas ($11.00); Arizona ($13.85); California ($15.50); Colorado ($13.65); Connecticut ($14.00); District of Columbia ($16.50); Delaware ($11.75); Florida ($11.00); Hawaii ($12.00); Illinois ($13.00); Massachusetts ($15.00); Maryland ($13.25); Maine ($13.80); Michigan ($10.10); Minnesota ($10.59); Missouri ($12.00); Montana ($9.95); Nebraska ($10.50); New Jersey ($14.13); New Mexico ($12.00); Nevada ($10.50 or $9.50 with health insurance); New York ($14.20); Ohio ($10.10); Oregon ($13.50); Rhode Island ($13.00); South Dakota ($10.80); Virginia ($12.00); ($13.18); Washington ($15.74); and West Virginia ($8.75).

Recreational Marijuana
Following the trend of legalizing marijuana for medicinal use, states are increasingly legalizing recreational marijuana as well. While this may be troubling in and of itself for employers, the variations in these new laws are particularly challenging.  For example, in the November election, Missouri voters passed a constitutional amendment legalizing marijuana.  Setting aside medical use, the new Missouri law places restrictions on employer drug testing and response to positive tests.  Meanwhile, a recreational marijuana bill moving forward in Minnesota would prohibit pre-employment testing altogether, and effectively limit employer action to circumstances involving possession or use on site or demonstrated impairment at work.  Keeping up with this changing landscape is difficult enough in one state, but multi-state employers face a particularly tough task maintaining a single, multi-state policy.
Note: While marijuana remains criminally illegal under federal law, state employment law protections still apply.  However, if federal law requires drug testing for marijuana and consequential personnel action, such as Department of Transportation regulations, then employers should continue to follow federal law.

Pay Transparency
A new trend in the last few years is pay transparency legislation. These state statutes require employers to disclose the compensation range for positions in job postings.  Beyond wage or salary ranges, this can include eligibility for other compensation, such as commissions or bonuses, and a description of fringe benefits.  While there are only a handful of traditional “blue” states such as California and New York that have adopted these laws so far, these states are taking a broad view of their laws as applied to remote workers. For example, the Colorado Department of Labor and Employment has interpreted its pay transparency statute to reach all job postings that are “capable of being performed in Colorado.” Thus, an Illinois employer that is open to remote candidates for a posted position is arguably within Colorado’s jurisdiction.  This issue is sure to be litigated, but for now, the reach of many of these statutes appear to go beyond their borders.

Conclusion: Minimum wage, marijuana legalization, and pay transparency are just a few examples of trends in state and local legislation impacting employers. Be sure to track updates in your state, and feel free to reach out to us if you have questions about the practical impact of any new laws.

David James and Joe Schmitt are shareholders in the labor and employment group at Nilan Johnson Lewis. Association members are entitled to 60-minute, no-cost, confidential consultations with the attorneys. Call the firm at 612.305.7500.