States with employment-related ballot questions mostly approved them during the November 8 election, and employers have little lead time before many measures will be implemented.
All told, 14 states have new provisions with which companies must comply, some as early as January 1, 2017.
Arizona, Colorado, Maine, and Washington considered minimum wage increases on their ballots, and all approved them, according to various news reports. Arizona, Colorado, and Maine voted to phase in a $12 per hour minimum wage by 2020. Washington’s minimum wage will be $13.50 by 2020.
Steven T. Collis, an associate with Holland & Hart and editor of Colorado Employment Law Letter, said the change “is a significant increase that could affect employers’ budgets and bottom lines, especially smaller employers or those in rural areas.”
The increase in Colorado will be phased in, with the first increase to $9.30 per hour happening on January 1, 2017. “As employers face the wage increase and manage their budgets accordingly, they may face tough decisions regarding the size of their workforce, which could raise key legal issues relating to layoffs and the impacts of those layoffs,” Collis said.
In Maine, the restaurant industry will be especially affected by the change, according to Connor Beatty, an associate with Brann & Isaacson and editor of Maine Employment Law Letter. “Currently, a reduced minimum wage applies to restaurant servers and other workers who rely heavily on tips, but this exception will be phased out over time,” he said. Maine’s first increase—to $9 per hour—will also happen in 2017.
Arizona and Washington also will see their first increases with the new year—Arizona’s to $10 and Washington’s to $9.47.
Voters in South Dakota considered a minimum wage ballot question, but it would have reduced employee pay. The initiative would have established a $7.50 minimum wage for workers under 18. (All workers in the state currently receive at least $8.55, and an increase to $8.65 is set for January 1, 2017.) Voters rejected the change 71 percent to 29 percent.
“For many South Dakotans in the business community, such a high percentage of ‘no’ votes was likely shocking, as several organizations were openly in favor of a youth minimum wage, including a strong endorsement from the Rapid City Chamber of Commerce and [the] Rapid City Convention and Visitors Bureau,” said Kassie Shiffermiller, an attorney with Lynn, Jackson, Schultz & Lebrun, P.C., and editor of South Dakota Employment Law Letter.
Arizona and Washington also passed paid sick leave provisions.
In Arizona, employers must allow workers to use paid sick leave for a wide range of purposes, including their own or a family member’s broadly defined physical or mental illness, preventive care, or services related to domestic or sexual violence, according to Dinita L. James, a partner at Gonzalez Law, LLC, and editor of Arizona Employment Law Letter.
Arizona employers with fewer than 15 employees must allow workers to earn 24 hours of paid sick leave per year, while those with 15 or more employees must grant 40 hours of paid earned leave annually. Those requirements begin July 1, 2017.
Washington mandated one hour of paid sick leave for every 40 hours worked and will allow workers to use the time for themselves or their families. The requirement doesn’t take effect, however, until 2018.
Right to work
Voters in Alabama, South Dakota, and Virginia considered “right-to-work” questions that had varying levels of success.
Alabama voters approved a ballot question that amends the state’s constitution to make clear that employers cannot require workers to join a labor union as a condition of employment. State law already prohibits that practice, however.
Virginia voters rejected a similar question. “Because right to work already is the law in Virginia by statute[,] there was no need to enshrine the principle in the state’s constitution,” explained Jonathan Mook, a partner in DiMuro Ginsberg PC and an editor of Virginia Employment Law Letter. “There is no serious thought that the Virginia Legislature will change the law, so amending the constitution was unnecessary. It would be overkill[,] as the voters made clear in rejecting the proposed amendment.”
In South Dakota, the ballot asked voters to rescind the state’s right-to-work status, but they rejected the measure. “South Dakota’s long-standing status as a right-to-work state is preserved, at least for now,” said Jennifer Frank, also an attorney with Lynn, Jackson, Schultz & Lebrun, P.C., and editor of South Dakota Employment Law Letter. “Employers and labor unions alike are reminded that they cannot mandate that employees join a union or require that all employees pay a fee to [a union] regardless of whether they belong to that union.”
While the ballot questions were not directly aimed at employers, several states considered initiatives on medical or recreational marijuana use.
Arkansas, Florida, and North Dakota approved medical marijuana, and Montana voters lifted restrictions on the state’s existing law. California, Nevada, Maine, and Massachusetts approved marijuana for recreational use.
Only voters in Arizona, who considered a recreational marijuana measure, rejected their ballot question.
The changes don’t require employers to alter any workplace rules. Companies are still free to prohibit workers from using marijuana at work.
However, some states, including Arkansas and Maine, prohibit employers from discriminating against an individual based on her marijuana use. The new measures do not appear to have employment nondiscrimination provisions.