Voters in Some States Will Tackle Workplace Issues

In addition to voting for political leaders this Election Day, some voters will weigh in on workplace issues through state ballot measures.

“There are several trends this election season that have the potential to impact the workplace,” said Mark Goldstein, an attorney with Reed Smith in New York City. Residents of some states will consider raising the minimum wage, establishing a statewide program for paid family and medical leave, and legalizing marijuana.

“Other trends this election cycle include several initiatives related to individual privacy—in California and Michigan—as well as worker classification,” Goldstein said.

Ballot initiatives allow citizens to vote on certain measures that are usually determined by the state legislature or local government. A citizen-initiated measure, which is allowed in about half the states, is put on the ballot after a petition is signed by a minimum number of registered voters. Another type of ballot measure is a legislative referendum, through which a state legislature may refer a measure to voters for approval.

Voters in 32 states will decide 120 state ballot measures on Nov. 3, according to Ballotpedia, a nonpartisan online political resource, and eight additional measures were approved for pre-November election dates. The total number of ballot measures nationwide is down from 162 in 35 states during 2016.

The COVID-19 pandemic made it difficult for advocates to get ballot measures in front of voters this election cycle, noted Adam Sencenbaugh, an attorney with Haynes and Boone in Austin and San Antonio, Texas.

Here are some of the key workplace issues voters will consider this Election Day.

Minimum Wage

Organizers in Florida successfully put an amendment on the 2020 ballot to gradually increase the state’s minimum wage as follows:

  • $10 on Sept. 30, 2021.
  • $11 on Sept. 30, 2022.
  • $12 on Sept. 30, 2023.
  • $13 on Sept. 30, 2024.
  • $14 on Sept. 30, 2025.
  • $15 on Sept. 30, 2026.

Starting Sept. 30, 2027, increases to Florida’s minimum wage would be based on the Consumer Price Index for Urban Wage Earners and Clerical Workers. 

The COVID-19 crisis curbed efforts to put minimum-wage hikes on the ballot in other states, Sencenbaugh observed. “Similar efforts in Ohio and Idaho failed in large part because shelter-in-place orders made it much harder to safely obtain signatures needed to advance the measures,” he said.

Paid Family and Medical Leave 

A ballot measure in Colorado would establish a statewide program for paid family and medical leave. If passed, the measure would allow eligible workers to take 12 weeks of paid leave, which would be funded through a payroll tax on employers and employees. An additional four weeks of leave would be allowed for pregnancy or childbirth-related complications.

Kristin White, an attorney with Fisher Phillips in Denver, noted that the Colorado Legislature has failed to pass legislation on this issue during the last two sessions. Lawmakers disagreed about whether the program should be state-run or should allow employers to opt in to private plans. “As a result, the issue is now going to be decided by the voters,” she said.

The law would offer job-protected paid-leave benefits to workers who have earned at least $2,500 with their employer and have been on the job for at least 180 days.

Businesses with fewer than 10 employees would be exempt from the employer premium, and companies could opt to go with their own leave program instead of participating in the statewide program if the alternative program meets certain criteria.

Marijuana Legalization

“The trend of states legalizing both the medicinal and adult-use sale of cannabis will continue for the foreseeable future,” said Robert DiPisa, an attorney with Cole Schotz in Hackensack, N.J.

Voters in five states will decide whether to approve medical or recreational marijuana use. Voters in Mississippi will get to weigh in on whether medical marijuana should be legal in the state. In Arizona, Montana and New Jersey—where medicinal use is already permitted—voters will decide whether to approve recreational use. Both recreational and medical measures are on the ballot in South Dakota.

“With the majority of states already having legalized cannabis, and five more states voting on legalization this November, it has become increasingly important for employers to clarify their policies,” said Brett Wendt, an attorney with Fisher Phillips in Denver.

Independent-Contractor Status

California voters will consider a measure that would exempt app-based gig-economy drivers from the scope of AB 5, a state law that took effect on Jan. 1 to make it more difficult to classify workers as independent contractors rather than employees. App-based drivers will be defined on the ballot as workers who either:

  • Provide delivery services on an on-demand basis through a business’s online-enabled application or platform.
  • Use a personal vehicle to provide prearranged transportation services for compensation through a business’s online-enabled application or platform.

If voters decide such drivers should remain independent contractors, the ballot measure would also ensure app-based drivers receive certain benefits, including:

  • Minimum net earnings of 120 percent of the state’s or locality’s minimum wage and 30 cents per mile.
  • Healthcare subsidies.
  • Occupational accident insurance.
  • Accidental death insurance.

Under the measure, companies would have to develop anti-discrimination and sexual-harassment policies, and drivers would be limited to working 12 hours during a 24-hour period. 

‘Pay Close Attention’

“With every election cycle, employers need to pay close attention to the initiatives that are passed at the state and local levels,” Goldstein said. “While most employment laws are passed during legislative sessions, we are increasingly seeing the election ballot being used as a mechanism to effectuate change in the workplace.”

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