Legal Updates

2020 Election Ballot Measures Bring About New State Workplace Laws

In keeping with a growing trend across the United States, many states’ ballots in last month’s election included proposed measures affecting the workplace. A number of these ballot measures passed, including proposals affecting minimum wages, paid family and medical leave, marijuana legalization, and worker classification.

Florida Minimum Wage

First, Florida voters approved a measure that will gradually increase the state minimum wage from its current $8.56 per hour up to $15.00 per hour. Effective September 30, 2021, the Florida minimum wage rate will rise to $10.00 an hour. Thereafter, the minimum wage rate will increase by $1.00 on each succeeding September 30th, until it reaches $15.00 effective September 30, 2026.

Colorado Paid Family And Medical Leave

Colorado voters passed an initiative creating a Paid Family and Medical Leave (“PFML”) program, which will provide most Colorado employees with up to 12 weeks (or 16 weeks under certain circumstances) of job-protected, paid leave per calendar year.

The Colorado PFML program will be funded through a payroll tax paid by employers and employees in equal proportions. Employers will be required to remit such payroll taxes into the State Treasury Fund beginning on January 1, 2023. Employers with nine or fewer employees will be exempt from the requirements of the PFML program, including the required payroll tax.

Effective January 1, 2024, eligible employees, (i.e., those who have worked at least 180 days and have earned at least $2,500.00 in wages) may take PFML leave and receive benefits: (1) for the birth, adoption, or placement through foster care of a child; (2) for a serious health condition; (3) to care for a family member with a serious health condition; (4) for any qualifying exigency leave; or (5) for safe leave due to domestic violence. An employee may be eligible for an additional four weeks of PFML leave if the employee experiences complications with a pregnancy or during childbirth.

An employer may use a private plan as an alternative to the PFML program, so long as the private plan provides benefits to employees at least as favorable as they would receive under the PFML program.
The Colorado Department of Labor and Employment will administer the PFML program through a newly created division, the Division of Family and Medical Leave Insurance (the “Division”).

In addition to withholding and remitting payroll taxes, employers will be required to display a workplace poster, which will be created by the Division, detailing the PFML program, and to provide employees notice of their rights under the PFML upon hire and upon learning of an employee’s need for leave under the PFML.

Marijuana Legalization

Although marijuana use and possession is still illegal at the federal level, many states have passed legislative or voter measures legalizing marijuana for recreational and/or medicinal purposes. In the recent election, voters in Arizona, Montana, New Jersey, and South Dakota opted to join 15 other states that have approved the recreational use of marijuana. Voters in Mississippi approved a measure permitting the use of marijuana for medicinal purposes only.

California Independent-Contractor Law

Finally, in a major win for “gig” companies, California voters approved a ballot measure creating a carve-out from the state’s strict independent-contractor law for app-based transportation and delivery drivers working for companies such as Uber, Lyft, DoorDash, and Instacart.

This measure essentially creates a new category of workers under California law. While employers will be allowed to compensate gig drivers as independent contractors rather than as employees, such drivers will nonetheless be entitled to some workplace protections typically reserved for employees. For instance, under the ballot measure, the hiring company may not discriminate against an independent-contractor driver based on a protected class and must develop a sexual harassment policy to protect drivers and users of the app. The company is also required to conduct a criminal background check for each driver and mandate safety training for all drivers.

The ballot measure also specifies the criteria for determining whether an app-based driver is an employee or independent contractor. An app-based driver may be classified as an independent contractor provided that the hiring company: (1) does not require the driver to abide by a specific schedule; (2) does not restrict the driver from performing services for other companies (except while performing an assignment on behalf of the hiring company); (3) ensures that the driver earns a certain minimum amount; (4) provides a quarterly health insurance subsidy, as well as accident and accidental death insurance for certain drivers; (5) limits the driver’s work hours to 12 hours in any 24-hour period, unless the driver has logged off for an uninterrupted period of six hours; and (6) enters into a written contract with the driver that may be terminated only for “cause,” as specified in the contract.

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Schwartz Hannum has extensive experience assisting multi-state employers in complying with workplace laws, including wage-and-hour, leave, and other requirements. If you have any questions about the new laws approved through these ballot measures or need help with any other labor or employment matter, please contact any of our attorneys.