While news of the COVID-19 pandemic and related legislation dominated headlines in 2020, lawmakers and regulators in the U.S. still managed to advance an assortment of laws concerning ban the box measures, equal pay, and marijuana reform. Here is a look back at some of the key advancements in these three areas during the past year.
Fourteen states, 21 cities/counties, and the District of Columbia have adopted ban-the-box laws, which delay the timing in which an employer can ask candidates about their criminal history. However, the way in which their laws cover this issue will vary from location to location, ranging from those measures that simply delay inquiries into a candidate’s criminal history until some later point in the hiring process (such as Colorado’s measure), to individualized assessments in California to those that require special forms, such as in New York City, N.Y.
- Hawaii Amends its Ban-the-Box Law – On September 15, Hawaii amended its ban-the-box law to offer better opportunities for hire for candidates with older criminal records. The passing of SB2193 into law means that most employers may now only consider misdemeanor conviction records falling within the most recent five-year period, and felony convictions falling within the most recent seven-year period, excluding periods of incarceration. Hawaii’s revised law aims to thwart criminal recidivism by getting ex-offenders back into the workplace.
- California –Bolstering COVID-19 worker protections, the California Department of Fair Employment and Housing (“DFEH”) recently clarified the state’s criminal background check regulations. The new guidance expands the scope of California’s Fair Chance Act and places employers on notice regarding DFEH’s intended enforcement of the law. Read more here.
As we look on to 2021, we will be closely monitoring any other states or cities who are looking to update their legislation, or introduce new legislation, to support the ban-the-box movement.
The national trend continues in the U.S., as additional cities and states have introduced pay equity legislation in 2020 to help tackle the issue of the gender pay gap.
- As discussed in my 2020 mid-year update blog, New Jersey, New York and the cities of Cincinnati and Toledo in Ohio already introduced pay equity legislation earlier this year, with Maryland’s new law coming into effect in October and Colorado’s slated for January 1, 2021.
- Maryland’s House Bill 123 – On October 1, Maryland’s new pay equity law came into effect, prohibiting employers from seeking an applicant’s wage history orally, in writing, through an employee or agent, or from a current or former employer. Additionally, amendments to House Bill 123 state that, on request, an employer must disclose a wage range for the position which the applicant applied, and that they cannot retaliate against a candidate for requesting a wage range or for not disclosing their previous salary.
- Rizo v. Fresno County Office of Education – Litigation stemming from gender-based pay discrepancies continues to gain ground. In the case of Rizo v. Fresno County Office of Education, in February 2020, where a simple percentage-based formula was used to determine future salary based on prior salary, the Ninth Circuit Court of Appeals found that prior salary, alone or in combination with other factors, cannot be used to justify a wage differential. The Equal Pay Act states that employers can pay men and women differently for the same work only if such a payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity, quality or production; or (iv) a differential based on any factor other than sex. The term “any factor other than sex” is limited to legitimate, job-related factors such as a prospective employee’s experience, educational background, ability, or prior job performance.
Marijuana Reform and Accommodation
A notable trend towards decriminalizing, but in many cases not fully legalizing, cannabis has taken hold in 2020. In these cases, marijuana remains illegal, but possession of small amounts is not prosecuted.
- Federal Decriminalization – On December 4, the Marijuana Opportunity Reinvestment and Expungement (MORE) Act (R. 3884) passed the U.S. House of Representatives and has now gone to the U.S. Senate for consideration this term. If this revolutionary bill passes into law, albeit unlikely based on the current composition of the Senate, it will undoubtedly prompt more individual states, counties, and cities to advance their own marijuana legislation. Notably, for employers, it will prohibit random drug testing for employment purposes for most unregulated positions.
- Votes on Marijuana Reform – During the November 2020 elections, America saw a green wave sweep the country, with voters in three states – Arizona, Montana, and New Jersey – approving recreational marijuana, and voters in Mississippi approving medical marijuana. Voters in South Dakota advanced laws that legalize both medical and recreational marijuana. This adds to a confusing patchwork of legislation for employers. However, it should be noted that none of these votes provide any express worker protections or impacts to testing.
- Decriminalization of Marijuana in Virginia – On July 1, Virginia decriminalized simple marijuana possession, reducing a maximum fine of $500 and a maximum 30-day jail sentence for a first offense to a civil penalty of “no more than $25.” While the state chose not to legalize marijuana, it has decriminalized simple marijuana possession and prohibits employers from requiring candidates to disclose past marijuana possession criminal charges. This means that convictions for simple marijuana possession will not be reflected on an individual’s criminal record, and that ex-offenders can seek expungement. However, if a driver is found to possess marijuana while operating a commercial motor vehicle, that violation will be reported to the DMV and added to the driver’s MVR.
- Recreational Marijuana – For recreational purposes, there are 10 states that have legalized marijuana. In all these states (excluding Maine), there are no employment protections in place for recreational users. However, in Maine, the protections afforded to a recreational marijuana user are the same as for a medical marijuana user, in that most employers cannot adversely affect a non-safety sensitive worker’s ability to use recreational marijuana off-duty and off-premises.
- Medical Marijuana – Utah’s medical marijuana law passed in 2018 became effective in March of this year. An amendment to the law clarifies that private employers are not required to accommodate the use of medical marijuana, permits drug screening for marijuana, and allows employers to implement zero-tolerance policies against marijuana use at the workplace or while on the job. Like many other recently passed marijuana measures, Utah’s law provides for the expungement of certain marijuana-related convictions.
To find out more about these topics by watching my on-demand 2020 webinars, 2020 Q3 Compliance Update: Pandemic Progress and 2020 Q2 Quarterly Compliance. Additionally, look for new compliance updates in 2021.