Privacy Legislation

Laws regarding worker privacy were enacted in Kentucky, Oklahoma and Washington.

Kentucky now provides immunity from civil liability to employers that provide references regarding job performance, conduct, or evaluations of former or current employees. This is the case except when a plaintiff can prove the employer knowingly provided false information or if the disclosure constitutes an independent, unlawful discriminatory practice such as retaliation.

Oklahoma enacted legislation prohibiting employers from posting or displaying Social Security numbers of an employee (unless the number is required by a personnel document mandated by federal law or state law). The law restricts requirements that employers transmit Social Security numbers over the Internet unless the connection is secure or the number is encrypted.

Washington also enacted a genetic testing protection law. This new law prohibits employers from requiring applicants or employees to disclose genetic information, or to submit to screening for genetic information, as a condition of employment or continued employment.

Protected Category Group Expansion

Eight states enacted legislation which creates or enlarges protected group category status. Four new laws added protection for National Guard membership, protecting individuals serving in and returning from the Iraq conflict.

The eight states and the new protected categories include:

o California–the status of being a domestic partner.

o Hawaii–due to arrest or court records.

o Illinois–sexual orientation, membership in the National Guard and volunteer firefighter status.

o Massachusetts–veteran status and membership in the National Guard.

o Minnesota–membership in the National Guard.

o North Carolina–victims of domestic violence and membership in the National Guard.

o Oklahoma–serving on a jury.

o Rhode Island–crime victims.

New Employment Discrimination Procedure Requirements

Four states enacted legislation or amended existing laws that change or enlarge procedures for litigation of employment discrimination claims.

In California, the Labor Code Attorney General's Act was amended by softening penalty provisions. California's existing anti-discrimination law also was amended to provide registered domestic partners with the same rights, protections and benefits under law as married spouses. It also expanded employers' exposure to liability attributable to third-party harassment of employees.

In Delaware, new legislation eliminated the state's Equal Employment Review Board and now allows claimants to pursue judicial remedies in state court. The statute of limitations also was changed to 120 days from the date of the alleged discriminatory act.

In Illinois, legislation was enacted to authorize the state's attorney general to bring “pattern or practice” lawsuits against employers. This was modeled, to an extent, on the procedures for “pattern or practice” lawsuits brought by the U.S. Equal Employment Opportunity Commission.

In Tennessee, the state's Equal Pay Law was amended to provide recovery of compensatory and punitive damages against employers who knowingly violate the statute.

Drug & Alcohol Testing

Three states enacted or amended laws controlling procedures for drug and alcohol testing by private employers.

Louisiana's existing law was amended to specify that samples other than urine–including blood, saliva and hair–may be used for workplace drug testing. It also requires thatspecified, certified laboratories must be used if the testing is for drugs, including marijuana, cocaine and amphetamines. These labs also must be used if an individual could be terminated as a result of the alcohol or drug testing.

In Maine, new legislation was enacted that is applicable to employers of 50 or more workers. This allows random or arbitrary drug testing, as long as the employer is not covered by a collective bargaining agreement and has instituted or appointed an employee committee responsible for developing a written policy regarding substance abuse testing programs. The committee testing policy also must be approved by the state's Department of Labor.

In Mississippi, legislation was enacted to require employers to provide employees with a written policy statement regarding the existence of any drug testing program at least 30 days prior to implementation of the program. The notice must include information regarding confidentiality protections, procedures for testing, the consequences of refusing to submit to a test, and opportunities for rehabilitation if the employee has a confirmed positive result.

Miscellaneous Employment & Labor Legislation

Several states passed miscellaneous labor and employment laws. These include job bias protection for employees who use lawful products off-duty. In Rhode Island this included a tobacco use law, while banning smoking in the workplace.

Others include an expansion of whistleblower protections in Delaware, new leave of absence entitlements (in Rhode Island for victims of criminal violence, and in North Carolina for victims of domestic violence participating in court proceedings), and regulating plant closings and mass layoffs in Illinois.

California also enacted a mandatory training law, requiring private employers of 50 or more to provide at least two hours of training to supervisory personnel on prevention of sexual harassment. By Jan. 1, 2006, all supervisory personnel employed as of July 1, 2005 must have undergone the training. Supervisors hired after July 1, 2005 must be trained within six months of their assumption of duties.

In conclusion, risk managers and human resource professionals should examine the personnel policies of their companies to insure they comply with the spate of new legislation which became effective in 2005. Proper planning and implementation of personnel policies can help reduce the risk of legal claims and mitigate exposures to employment problems.

Gerald L. Maatman Jr. is a partner with Seyfarth Shaw LLP in Chicago.