Arkansas Employment Law Update – March 2017

Arkansas

Protections of Social Media Accounts of Current and Prospective Employees

On April 1, 2017, Arkansas Governor Asa Hutchison signed legislation (H.B. 2216) amending Arkansas law concerning the social media accounts of current and prospective employees. Pursuant to the bill, an employer must not require a current or prospective employee to add another employee, supervisor, or administrator to the list or contacts associated with his or her social media account.

The bill goes into effect 91 days after adjournment (projected August 18, 2017).

Read AR H.B. 2216

Whistleblower Protections for Public Employees

On April 1, 2017, Arkansas Governor Asa Hutchison signed legislation (H.B. 2055) concerning remedies available to public employees who are terminated in violation of the state’s Whistle-Blower Act. Pursuant to the bill, public employees may request an expedited hearing on the issue of reinstatement when alleging that they were terminated due to a prohibited adverse action. The bill also addresses public employees’ appeals process of state agency grievance decisions.

The bill goes into effect 91 days after adjournment (projected August 18, 2017).

Read AR H.B. 2055

Unemployment Insurance – Taxable Wage Base, Weekly Benefit Amount, and Eligibility

On March 28, 2017, Arkansas Governor Asa Hutchinson signed legislation (H.B. 1405) amending the state’s employment security law. Among other things, the bill:

  • Reduces the taxable wage base that Arkansas employers are required to pay unemployment insurance tax on to $10,000 (currently $12,000) per employee, per calendar year.
  • Changes the maximum potential benefit of an insured worker in a benefit year to the lesser of:
    • Sixteen times (currently 20) his or her weekly benefit amount; or
    • One-third of his or her wages for insured work in his or her base period.
  • Provides that an individual that receives severance pay from his or her employer is not eligible for benefits for those weeks.

The bill goes into effect 91 days after the legislature adjourns (projected August 18, 2017).

Read AR H.B. 1405

Workers Compensation – Treatment of Rabies

On March 27, 2017, Arkansas Governor Asa Hutchinson signed legislation (H.B. 1813) amending the state’s workers’ compensation law to provide for the treatment of rabies. The bill goes into effect 91 days after the legislature adjourns (projected August 18, 2017).

Read AR H.B. 1813

Medical Marijuana – Employee Protections and Safety

On March 27, 2017, Arkansas Governor Asa Hutchinson signed legislation (H.B. 1460) amending the Arkansas Medical Marijuana Amendment of 2016 regarding employee protections and safety.

Specifically, H.B. 1460:

  • Clarifies that a written certification by a physician for use of marijuana is not a medical prescription and amends the definition of “designated caregiver” to provide that the caregiver may assist no more than one qualifying patient including their spouse or minor child.
  • Provides protections for employers of employees who may be under the influence of marijuana at the workplace and during work hours. Actions against an employer for establishing a substance abuse or drug-free workplace policy including drug testing or for an employer to act in good faith in determining that an employee used marijuana while on the job or was under the influence of marijuana while on the job would be limited.
  • Amends the language regarding employer damages established for employment discrimination claims by applicants or employees based on past or present status as a qualifying patient or designated caregiver to delete the specific references to Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, and the Arkansas Civil Rights Act of 1993. The amendment provides that damages awarded could not exceed any statutory limits as existing in federal or state law on January 1, 2017.
  • Provides additional clarifying language regarding actions of an employer regarding:
    • Safety sensitive positions; and
    • Causes of action against an employer who implements a substance abuse or drug-free workplace.
  • Amends definitions to establish that an employer’s good faith belief of marijuana use applies to applicants for employment as well as existing employees; employer includes all types of business entities in addition to individuals; clarifies provisions related to a “safety sensitive position,” and “under the influence”; and makes clarifying changes to employer, employee, and applicant for employment protections.

The bill goes into effect 91 days after the legislature adjourns (projected August 18, 2017).

Read AR H.B. 1460

Pre-Emption of Local Laws Regarding Employment

On March 24, 2017, Arkansas Governor Asa Hutchinson signed legislation (S.B. 668) prohibiting a political subdivision of the state from establishing, mandating, or otherwise requiring an employer to provide to an employee a minimum or living wage rate or employment benefit that exceeds the requirements of federal or state laws and regulations. Employment benefit means anything of value that an employee may receive from an employer in addition to wages and salary, including without limitation:

  • Health, disability, retirement, profit-sharing, and death benefits;
  • Group accidental death and dismemberment benefits;
  • Paid or unpaid days off from work for holidays, sick leave, vacation, and personal necessity; and
  • Terms of employment, notice of scheduling, attendance or leave policies.

The law does not pre-empt any state law or local minimum wage ordinance requirements that that are in effect on the effective date of the law.

The bill goes into effect 91 days after the legislature adjourns (projected August 18, 2017).

Read AR S.B. 668

Action for Unauthorized Access to Property

On March 23, 2017, Arkansas Governor Asa Hutchinson signed legislation (H.B. 1665) creating a civil cause of action for unauthorized access to property. Pursuant to the bill, a person who knowingly gains access to a nonpublic area of a commercial property and engages in an act that exceeds the person’s authority to enter the nonpublic area is liable to the owner or operator of the commercial property for any damages sustained by the owner or operator.

Commercial property means:

  • A business property;
  • Agricultural or timber production operations, including buildings and all outdoor areas that are not open to the public; or
  • Residential property used for business purposes.

Nonpublic area means an area not accessible to or not intended to be accessed by the general public.

An act that exceeds a person’s authority to enter a nonpublic area of commercial property includes an employee who knowingly enters a nonpublic area of commercial property for a reason other than a bona fide intent of seeking or holding employment or doing business with the employer and without authorization subsequently:

  • Captures or removes the employer’s data, paper, records, or any other documents and uses the information contained on or in the employer’s data, paper, records, or any other documents in a manner that damages the employer;
  • Records images or sound occurring within an employer’s commercial property and uses the recording in a manner that damages the employer;
  • Places on the commercial property an unattended camera or electronic surveillance device and uses the unattended camera or electronic surveillance device to record images or data for an unlawful purpose;
  • Conspires in an organized theft of items belonging to the employer; or
  • Commits an act that substantially interferes with the ownership or possession of the commercial property.

Any person who knowingly directs or assists another person to violate the law may be held jointly liable.

In an action brought under this section a court may award a prevailing party one or more of the following remedies:

  • Equitable relief.
  • Compensatory damages.
  • Costs and fees, including reasonable attorney’s fees.
  • In a case where compensatory damages cannot be quantified, a court may award additional damages as otherwise allowed by state or federal law of up to $5,000 for each day, or a portion of a day, that a defendant has acted in violation of the law.

The bill goes into effect 91 days after the legislature adjourns (projected August 18, 2017).

Read AR H.B. 1655