State Ballot Initiatives May Impact the Workplace

Voters in some states are taking issues like minimum wage to the ballot box

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This election season, employers should keep informed about state ballot initiatives that may impact the workforce—such as minimum-wage increases and marijuana legalization.

"Some big items have stalled in Congress, and advocates are looking for other ways to pursue those interests," said Ilyse Schuman, an attorney with Littler in Washington, D.C.

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Ballot initiatives allow citizens to vote on certain measures that are usually determined by the state legislature or local government. After a petition is signed by a minimum number of registered voters, a measure is put on the ballot for a public vote.

The citizen initiative is just one kind of ballot measure. Another type is a legislative referendum, through which a state legislature may refer a measure to voters for approval.

Legislatures across the country are referring fewer issues to voters, said Cole Wist, an attorney with Ogletree Deakins in Denver and a member of the Colorado House of Representatives.

Through citizen initiatives, voters have a way to bypass the legislature and place items on the ballot to accomplish what they want the legislature to do, he noted.

However, only certain states allow citizen initiatives, explained David Pryzbylski, a partner at Barnes and Thornburg in Indianapolis. He noted that Indiana doesn't permit this type of ballot measure, but its employers and attorneys often have an interest in following trends in other states.

So far, for the upcoming election on Nov. 8, 165 statewide ballot measures have been certified in 35 states, and 74 of those measures are citizen initiatives, according to Ballotpedia, a nonpartisan online political resource.

"Efforts to raise the minimum wage and legalize marijuana are the big ticket items in 2016," Pryzbylski said.

Minimum Wage

"State minimum-wage increases are at the top of the list of employment-related measures," Schuman said. "In the absence of federal minimum-wage legislation, we are seeing more ballot initiatives around the country."

"The federal government's perceived lack of swiftness to keep up with inflation is likely a trigger," Pryzbylski explained.

Arizona, Colorado, Maine and Washington have certified initiatives for 2016 that would raise the minimum wage.

A California ballot initiative that proposed to increase the state minimum wage to $15 per hour was withdrawn after Gov. Jerry Brown approved similar legislation in April.

In 2014, Alaska, Arkansas, Illinois, Nebraska and South Dakota voters approved initiatives to increase the minimum wage.

Schuman said employers should note that state minimum-wage measures have received bipartisan support from voters in recent elections.

Whether through the legislature or because of a ballot initiative, 14 states raised their minimum wage at the start of 2016, according to the National Conference of State Legislatures.

Marijuana Legalization

Marijuana legalization is another popular ballot measure that can impact employers.

Nine states have certified measures for 2016, but they vary in their proposals.

Measures in Arizona, California, Maine, Massachusetts and Nevada would legalize recreational use for adults ages 21 and older.

In Arkansas, Florida and North Dakota, proposals to legalize medical marijuana will be on the ballot.

Lastly, although medical marijuana is already legal to a limited degree in Montana, voters will have a chance to reduce provider restrictions in the state.

Marijuana is still illegal at the federal level, Pryzbylski explained, so it's important to keep in mind that employees can still be discharged for using marijuana even if their state makes it legal.

He noted that there are practical implications to having a zero-tolerance policy. If a portion of the employee base decides to use marijuana, the employer has to be consistent about enforcing its policy.  

On the Horizon

It's a lot easier in the digital age to create citizen initiatives and to get people organized around certain ideas, according to Pryzbylski. Even in states like Indiana that don't allow ballot initiatives, the legislature is more in tune with citizens now through Facebook, Twitter and other social media.

As an example, he said that after a public outcry, the Indiana legislature is contemplating a law against sexual-orientation discrimination. 

"We are likely to see more equal pay initiatives in the future," Wist noted. "In whatever areas there are litigation trends, there may be more appetite for folks to follow up with ballot initiatives."

Whether through ballot initiatives or legislation, states are working to enact paid leave, predictable scheduling and pay equity laws, Schuman said. Where federal initiatives have stalled, these issues are getting more attention at the state and local levels.

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