With the patchwork of state laws seemingly increasing by the day, compliance is an ongoing priority for employers. As 2023 winds down, it presents an opportune time to look at the legislative and regulatory changes that have made impacts in the past twelve months.
This year, the legality of marijuana, the accessibility of criminal information, pay transparency, and the availability of personal identifying information were all center stage in one respect or another throughout the country.
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Here is a summary of what happened and where in 2023.
Marijuana Laws
While marijuana remains a Schedule I substance under the Controlled Substance Act (making it illegal for any reason under federal law), to date, nearly every state has some form of law legalizing marijuana. With each passing year, we have seen more and more states legalizing it or further clarifying previous laws’ provisions, including accommodations for marijuana use, drug-free workplaces, and laws against testing for marijuana, and this year was no exception. In 2023, those states included:
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Delaware – Effective April 23, 2023, recreational marijuana was legalized in the state.
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Maryland – The state’s recreational marijuana law went into effect on July 1, 2023. Under the law, employers may continue to test and discipline employees.
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District of Columbia – Effective July 13, 2023, employees have protection for off-duty use of marijuana.
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Minnesota – Effective August 1, 2023, employees have protection for off-duty use of marijuana.
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Ohio – The state’s recreational marijuana law went into effect on December 7, 2023. Under the law, employers may continue to test and discipline employees.
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California – A law prohibiting pre-employment testing or current employee testing for marijuana is effective as of January 1, 2024. The law further states that employers may not ask questions about prior marijuana related crimes.
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Washington – Effective January 1, 2024, employers will be prohibited from conducting pre-employment testing for marijuana.
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Kentucky – Medical marijuana in edible and topical forms will be legal as of July 1, 2025.
Automatic Expungements
Clean Slate laws to automatically seal certain criminal records have become increasingly prevalent. In 2023, the following states passed these laws:
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Arizona – Effective January 1, 2023, records for certain crimes are sealed upon petition.
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Connecticut – Effective January 1, 2023, the state’s Clean Slate Act automatically clears certain types of criminal convictions.
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Michigan – Effective April 11, 2023, the state’s Clean Slate Act automatically clears certain types of criminal convictions.
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Alaska – Effective May 1, 2023, marijuana possession cases were removed from the state’s online database of cases.
Pay Transparency and Salary History
Pay Transparency laws have been impacting whether employers can use an applicant’s prior work history to determine their current salary for the past several years. Here are the states that now have pay transparency and salary history laws in effect:
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Washington – As of January 1, 2023, employers with 15 or more employees must include salary ranges and a description of benefits in all job postings.
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New York – As of September 17, 2023, employers must include compensation ranges in all job advertisements.
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Hawaii – Effective January 1, 2024, employers with a minimum of 50 employees must provide job listings with an hourly rate or salary range that reasonably reflects the anticipated compensation.
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Illinois – Effective January 1, 2025, employers with 15 or more employees must include salary ranges and a description of benefits in all job postings.
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Columbus, Ohio – Salary History. As of March 1, 2024, employers may not inquire about an applicant’s salary history.
Data Privacy
Data privacy has continued to be a significant concern for employers this year. With no comprehensive federal privacy law, states are taking privacy into their own legislative hands, and many more did so in 2023, including:
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Colorado – Data privacy law went into effect on July 1, 2023.
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Connecticut – Data privacy law went into effect on July 1, 2023.
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Texas – Data privacy law passed to go into effect on July 1, 2024.
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Oregon – Data privacy law passed to go into effect on July 1, 2024.
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Montana – Data privacy law passed to go into effect on October 1, 2024.
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Iowa – Data privacy law passed to go into effect on July 1, 2025.
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Indiana – Data privacy law passed to go into effect on January 1, 2026.
Other Compliance Changes
Pre/Adverse Action
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Chicago, Illinois – As of May 1, 2023, employers may not base an adverse employment action on an individual’s criminal conviction record unless certain conditions are met.
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California – As of October 1, 2023, employers may not base an adverse employment action on an individual’s criminal conviction record unless certain conditions are met.
DOT
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Oral Fluid – Effective June 1, 2023, the U.S. Department of Transportation’s (DOT) regulated industry drug testing program now includes oral fluid testing. To date, no labs are certified.
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FMCSA Clearinghouse – Fully live as of January 6, 2023, including proactive notifications to employers as of March 1, 2023.
Updated I-9 Form
Age-Related Information
Why Orange Tree?
Employers must remain diligent regarding state developments to ensure their policies and procedures remain in compliance. Additionally, those that use a consumer reporting agency for their background screening services should prioritize partnering with one that has achieved accreditation with the Professional Background Screeners Association (PBSA).
Orange Tree is an expert in background screening services, including legal and compliance. We are proud to be members of the PBSA. Orange Tree clients enjoy regular communications with updates to laws and legislation that impact them. Schedule time to speak with our team to design a background screening program tailored to your unique needs in 2024.
