As you are aware, the Idaho Legislature is in session and considering new legislation. It is considering several employment and labor bills, but only a few of those under current consideration may affect private businesses in Idaho.
The first, House Bill 71, seeks to amend the law pertaining to discrimination by making it unlawful to inquire about a prospective employee’s past salary history. The statement of purpose for the bill reads as follows:
A wage gap persists nationally, and it persists in Idaho. Lower and lost earnings make it harder for women to provide education, child care and basic support for children, save for home ownership and build assets for retirement. Lower earnings also result in less tax revenue. Policies that contribute to or create pay equity can reduce poverty, increase economic development and decrease reliance on state services. This bill would preclude employers from asking job applicants about salary history. For workers who are affected by a wage gap, these factors can create a ripple effect throughout the course of their careers. If a woman is underpaid at one job, the effects of that experience can stay with her as she applies for future positions if employers consider it when determining a future salary. By removing previous salary as a benchmark in salary negotiations, focus can be placed on internal equity (the value of a job to a particular workplace) and external equity (the value of a job to the marketplace). This will benefit Idaho job applicants and Idaho employers who want to attract talented, qualified candidates.
The bill would also unnecessarily duplicate protection found under the National Labor Relations Act by making it unlawful:
For an employer to require, as a condition of employment, that an employee refrain from inquiring about, discussing or disclosing information about either the employee’s own wages, including benefits or other compensation, or about any other employee’s wages.
The bill has yet to receive much attention. It was introduced and referred for printing on January 27 and referred to the Ways and Means Committee on January 30–the last action published on the proposal.
The second bill that has the potential to impact private Idaho employers is House Bill 72. This bill seeks to increase Idaho’s minimum wage to $8.75 per hour on July 1, 2017, to $10.50 on July 1, 2018, and to $12.00 on July 1, 2019. Wages for tipped employees would receive similar incremental increases. After 2019, the legislation would direct changes to the minimum wage directly proportional to an increase or decrease in the U.S. Department of Labor’s consumer price index for urban wage earners and clerical workers (CIP-W).
Finally, the third bill, House Bill 61, would amend Idaho Code section 44-2704. This code section was adopted by the legislature in 2008 and amended in 2016. It provides a laundry list of presumptions to help employers enforce non-compete agreements. The 2016 amendment added subsection 6, providing a presumption of irreparable harm that must be overcome by key employees. House Bill 61 seeks to repeal the 2016 amendment and revise subsection 5:
44-2704. RESTRICTION OF DIRECT COMPETITION — REBUTTABLE PRESUMPTIONS. (1) Under no circumstances shall a provision of such agreement or covenant, as set forth herein, establish a postemployment restriction of direct competition that exceeds a period of eighteen (18) months from the time of the key employee’s or key independent contractor’s termination unless consideration, in addition to employment or continued employment, is given to a key employee or key independent contractor. Nothing in this chapter shall be construed to limit a party’s ability to otherwise protect trade secrets or other information deemed proprietary or confidential.
(2) It shall be a rebuttable presumption that an agreement or covenant with a postemployment term of eighteen (18) months or less is reasonable as to duration.
(3) It shall be a rebuttable presumption that an agreement or covenant is reasonable as to geographic area if it is restricted to the geographic areas in which the key employee or key independent contractor provided services or had a significant presence or influence.
(4) It shall be a rebuttable presumption that an agreement or covenant is reasonable as to type of employment or line of business if it is limited to the type of employment or line of business conducted by the key employee or key independent contractor while working for the employer.
(5) It shall be a rebuttable presumption that an employee or independent contractor who is among the highest paid five percent (5%) of the employer’s employees or independent contractors is a “key employee” or a “key independent contractor.”
To rebut such presumption, an employee or independent contractor must show that it has no ability to adversely affect the employer’s legitimate business interests.
(6) If a court finds that a key employee or key independent contractor is in breach of an agreement or a covenant, a rebuttable presumption of irreparable harm has been established. To rebut such presumption, the key employee or key independent contractor must show that the key employee or key independent contractor has no ability to adversely affect the employer’s legitimate business interests.
Like House Bill 71, the last action published on this proposed legislation was when it was referred to the Ways and Means Committee on January 31. I don’t expect any of these bills to be signed into law, but we will continue to monitor these bills and other proposals that may affect Idaho businesses. Let us know if you have any questions about this or any other legal topic.