Q: Can you provide an overview of Election Day 2020 ballot measures approved by voters that may impact the workplace?

A: While President-elect Joe Biden’s victory over incumbent President Donald Trump dominated Election Day 2020, voters also approved various ballot measures that will have repercussions for workplaces throughout the nation. Below find a summary of some of the biggest employment-related ballot measures approved by voters.

California to Classify “Gig Economy” Drivers as Independent Contractors

California voters overwhelmingly approved Proposition 22 (Prop 22), a ballot measure allowing app-based rideshare and delivery companies that are part of the “gig economy” (e.g., Uber, Lyft, DoorDash, Instacart, and Postmates) to classify individuals performing services for those companies as “independent contractors” — rather than “employees” entitled to certain benefits like overtime and workers’ compensation insurance. The passage of Prop 22 strongly rebuked the 2018 California Supreme Court ruling in Dynamex Operations West, Inc. v. Superior Court of Los Angeles and the September 2019 passage of AB-5, which imposed heightened standards when assessing whether to classify workers as independent contractors rather than employees. Prop 22 effectively carves out gig workers from AB-5. The ballot measure does provide gig workers with (1) an earnings floor equal to 120% of the minimum wage for time spent serving customers, (2) health insurance subsidies for workers working at least 15 hours per week, and (3) insurance for on-the-job injuries.

Florida to Increase Minimum Wage to $15

Florida voters approved a ballot measure that will increase the state’s minimum wage in phases up to $15/hour by 2026. Specifically, Florida’s minimum wage will increase from $8.56/hour to $8.65/hour on January 1, 2021 (as previously scheduled), then to $10/hour on September 30, 2021 and by $1 per year thereafter until the hourly rate reaches $15/hour on September 30, 2026. The federal minimum wage stands at $7.25/hour, but President-elect Biden made clear he wants to see the nation’s minimum wage rise to $15/hour. While Florida’s 29 electoral votes went to President Trump, nearly 61% of Florida voters voted to raise the minimum wage to $15 per hour, suggesting that such an increase may have broader bipartisan appeal.

Colorado to Implement a Paid Family and Medical Leave Insurance Program

Voters in Colorado chose to add their state to the growing list of jurisdictions providing paid family and medical leave benefits to employees. Colorado joins states like New Jersey, New York, and Massachusetts in administering programs to provide employees with various types of paid family and medical leave benefits. Under the Colorado program, employees can take up to 12 weeks of job-protected paid leave through a state-run insurance program. Colorado employees can utilize the leave for (1) the birth, adoption, or placement through foster care of a child; (2) their own serious health condition; (3) to care for a family member with a serious health condition; (4) qualifying exigency leave (e.g., time off needed because of an employee or family member’s active duty military service); or (5) safe leave due to domestic violence. The program will be funded by a premium set at 0.9% of an employee’s wages (half paid by the employee and half paid by the employer). Employers must start collecting and paying the premiums on January 1, 2023, and employees will be eligible to start taking leave on January 1, 2024.

Multiple States, including New Jersey, to Legalize Recreational Marijuana

Two-thirds of New Jersey voters chose to legalize the possession and use of recreational marijuana for people over the age of 21. However, it will take some time before actual legalization of marijuana in the Garden State, as various implementing details must now be worked out by the legislature and the state’s Cannabis Regulatory Commission. Voters in Arizona, Montana, and South Dakota also voted to legalize recreational marijuana on November 3. As more and more states permit the use of marijuana for both medicinal and recreational purposes, employers will need to ensure their drug-free workplace and drug testing policies comply with the laws in the jurisdictions where they operate and consider whether it is even practical or necessary to test employees for marijuana in the absence of impairment on the job. Marijuana continues to be illegal under federal law.

Our Cannabis Practice provides advice on issues related to applicable state law. Cannabis remains an illegal controlled substance under federal law.