©2013 Duane Morris LLP. All Rights Reserved. Duane Morris is a registered service mark of Duane Morris LLP. Duane Morris – Firm and Affiliate Offices | New York | London | Singapore | Los Angeles | Chicago | Houston | Hanoi | Philadelphia | San Diego | San Francisco | Palo Alto | Baltimore | Boston | Washington, D.C. Las Vegas | Atlanta | Miami | Pittsburgh | Newark | Boca Raton | Wilmington | Cherry Hill | Lake Tahoe | Ho Chi Minh City | Duane Morris LLP – A Delaware limited liability partnership 2013 State Law Legislative Update prepared for Pennsylvania SHRM 13 th Legislative & Legal Conference April 19, 2013 presented by Jonathan A. Segal, Esq. *No statements made in this seminar or in the PowerPoint or other materials should be construed as legal advice or as pertaining to specific factual situations. Further, participation in this seminar or any question and answer (during or after the seminar) does not establish an attorney-client relationship between Duane Morris LLP and any participant (or his or her employer). DM2/

I. STATE TRENDS* *Current and proposed bills are examples only and not intended to be all inclusive.

CRIMINAL BACKGROUND CHECKS

Criminal Background Checks 1.Current laws a.Ban the Box: i.Massachusetts ii.Philadelphia iii.Newark (most recent) b.Others: i.California: prohibitions on considering certain convictions ii.New York: certain enumerated factors that employers must consider 3

Criminal Background Checks 2.Proposed laws (15 plus states) a.Restrictions, for example: Rhode Island -- only after conditional offer of employment has been extended b.Mandates, for example: proposals in some states for employees who will have unsupervised access to minors 4

Criminal Background Checks 3.Title VII a.Per se rules create commonality for class actions b.EEOC Guidance i.Individualized Assessments (Green factors) ii.Targeted Exclusions (tight nexus) iii.State law mandates not exempt from EEOC scrutiny but risks in not complying with state law mandates 5

6 CREDIT REPORTS

Credit Reports 1.Current law a.7 states have enacted restrictions b.3 states enacted restrictions in 2011 alone: CA, CN and MD

Credit Reports 2.Proposed laws a.Proposed bills in at least 15 states and District of Columbia b.Examples: i.PA: credit checks permitted for certain positions only (narrowly defined) ii.NJ: prohibits credit check as condition of employment

Credit Reports 3.Title VII – adverse impact analysis a.Per se rules create commonality for class actions b.Apply holistic approach (individual v class claims) c.Potential guidance from EEOC in the wings

DISCRIMINATION LAWS

Discrimination Laws 1.Examples of proposed bills: a.Sexual Orientation: i.Protected in 21 states (plus DC) already (private employers) ii.Proposed bills in Texas and (possibly) Pennsylvania, among other states b.Gender Identity: i.Protected in 16 states (plus DC) already (private employers) ii.Proposed bill in Hawaii, among other states [Hawaii already covers sexual orientation] 11

Discrimination Laws 1.Examples of proposed bills: (continued) c.Unemployed: i.Current laws: New Jersey, Colorado and Oregon ii.Proposed bills: Pennsylvania and Ohio (among other states) d.Domestic Violence Victim: i.Current law: New York City ii.Proposed bill: Hawaii e.Homelessness: i.Current law: Rhode Island ii.Proposed bill: California 12

Discrimination Laws 2.Multi-state issue a.EEO Policy: benefit of inclusion versus risk of quasi contract b.Recommendation: “Unlawful consideration of” 13

PAID LEAVE BILLS

Paid Leave Laws 1.Current paid leave laws include: a.Connecticut: virtually all employers b.Philadelphia: only certain contractors and subcontractors with the City of Philadelphia 15

Paid Leave Laws 1.Proposed paid leave laws: a.New York City b.Philadelphia (almost all employers) i.Passed by City Council ii.Veto by Mayor iii.Override by City Council failed 16

BULLYING

Bullying 1.No U.S. laws currently prohibit 18

Bullying 2.Proposals include: a.Maryland: Protection from “abusive work environments” without regard to protected status b.Massachusetts: Protection from “bullying” without regard to protected status c.Pennsylvania: Cohen bill to be proposed 19

Bullying 3.HR practices a.Address in training i.Harassment ii.Performance management b.Take corrective action c.But be careful of policy 20

IMMIGRATION

Immigration 1.Mandatory E-verify a.Approximately 20 states mandate use of E-verify in some circumstances i.All employers: Arizona ii.Some employers: Pennsylvania (state contractors and subcontractors) b.Supreme Court has upheld the right of states to regulate in this area if regulation relates to license to do business (not unlimited right) 22

Immigration 2.Activity in 2012 a.3 states enacted legislation applying to state contractors and subcontractors: Michigan, Pennsylvania and West Virginia b.5 states modified existing laws (for example, South Carolina created unauthorized work hotline) 23

Immigration 3.Proposals in many states—required use of E-verify a.Majority approach: state contractors and subcontractors b.Minority approach: all employers 24

Immigration 4.Immigration self-audits a.Focus: missing, incomplete or excess information b.Corrective action (contemporaneous dating) c.Summary memo 25

WEAPONS IN VEHICLES

Weapons in Vehicles 1.Currently: approximately 20 states protect, to some degree, the right of employees to have firearms in their motor vehicles (Florida and Texas, for example) 27

Weapons in Vehicles 2.Proposals (examples only) a.Tennessee: hand gun in car so long as not visible b.Pennsylvania: firearm in or on vehicle 28

SAME SEX MARRIAGE

Same Sex Marriage 1.Lawful in 9 states plus: Connecticut, District of Columbia, Iowa, Maine, Maryland, Massachusetts, New Hampshire, Vermont and Washington 30

Same Sex Marriage 2.States that may follow the trend: California, Illinois, Minnesota, New Jersey, Oregon and Rhode Island 31

Same Sex Marriage 3.Issues for employers, include, but are not limited to: a.Health and other insurance b.FMLA (definition of spouse) c.Bereavement and other policies 32

RIGHT TO WORK

Right to Work 1.Right to refrain from union membership (or to pay dues) where union in place 34

Right to Work 2.Before 2012, 22 states were right to work states 35

Right to Work : 2 more right to work states a.Indiana b.Michigan 36

Right to Work 4.Proposed legislation in: a.Pennsylvania b.Ohio c.Wisconsin 37

SOCIAL MEDIA

Social Media 1.Issue: prevent employers from requiring or even asking applicants or employees to disclose social media passwords 39

Social Media 2.Prohibitions in employment context passed in 4 states in 2012, including Maryland, Illinois, Michigan and California (2 more states passed in educational context only) 40

Social Media 3.Bills pending in many states, including Connecticut, Delaware, Maine, Minnesota, New Jersey, New York, Pennsylvania, Texas and Utah 41

Social Media 4.Legal risks even in the absence of legislation (for example, Stored Communications Act) 42

43 MINIMUM WAGE

Minimum Wage 1.19 states and the District of Columbia have minimum wages higher than federal minimum wage ($7.25) 44

Minimum Wage 2.Proposals to increase minimum wage in Pennsylvania: a.Set amount b.COLA increases 45

II. WHAT WERE THEY THINKING?

Indiana Spiteful gossiping is unlawful in Indiana. 47

New Jersey It is unlawful to wear a bullet proof vest while trying to kill someone. 48

West Virginia Road kill may be taken home for supper. 49

Baldwin City, California It is unlawful to ride a bicycle in a bath tub 50

Delaware It is unlawful to sell dead bodies without a license 51

Oklahoma It is illegal to have a sleeping donkey in your bathtub after 7 pm 52

New York New Yorkers cannot dissolve a marriage for irreconcilable differences unless they agree to it. 53

III. 10 RECOMMENDATIONS

10 Recommendations 1.Follow legislation a.Track individual bills b.Be mindful of developments in other jurisdictions 55

10 Recommendations 2.Evaluate bills—think critically a.Consider short-term and long-term impact b.Focus on the interests not only of employers but also employees—unintended but foreseeable adverse consequences of legislative action with laudable motivation (for example, minimum wage increase) 56

10 Recommendations 3.Know your Senators and Representatives a.Visit them b.Invite them to meet with you and others c.Develop relationships with their staffers, too 57

10 Recommendations 4.Build positive relationships a.Make public policy a two-way street b.Offer yourself, and your company, as a valuable resource for knowledge in your field. 58

10 Recommendations 5.Get others involved a.Internal (e.g., CEO) b.External (e.g., trade association) 59

10 Recommendations 6.Legal considerations: discoverability of communications 60

10 Recommendations 7.Personal considerations: check with your employer before taking public position 61

10 Recommendations 8.HR considerations: assume your workforce will find out what you say and make sure what you have said is defensible in terms of content and tone 62

10 Recommendations 9.Be practical a.Pick your battles—may be political reasons not to oppose a bill b.Do not give a bill that is going nowhere publicity so that it may end up going somewhere c.Encouraged not to take positions contrary to SHRM’s positions 63

10 Recommendations 10.Meeting with your representative a.No assumptions i.Position ii.Knowledge of bill b.Do not attack c.Explain bill d.Explain your position e.Don’t ask for impossible f.See “their movie” and frame accordingly 64

©2013 Duane Morris LLP. All Rights Reserved. Duane Morris is a registered service mark of Duane Morris LLP. Duane Morris – Firm and Affiliate Offices | New York | London | Singapore | Los Angeles | Chicago | Houston | Hanoi | Philadelphia | San Diego | San Francisco | Palo Alto | Baltimore | Boston | Washington, D.C. Las Vegas | Atlanta | Miami | Pittsburgh | Newark | Boca Raton | Wilmington | Cherry Hill | Lake Tahoe | Ho Chi Minh City | Duane Morris LLP – A Delaware limited liability partnership Thank You! 65