Even though America is united, each state and municipality can regulate employers on a local level (unless a preemption law applies), making HR compliance for multistate employers quite complex, according to a new report from XpertHR.
From California to New York, employers with operations in multiple states are inundated each year with hundreds, or even thousands, of new or changed state, county and city rules, regulations and ordinances affecting the employment relationship. As a result, HR’s job of ensuring legal compliance can be challenging.
“Employers with locations in more than one state must keep on top of the changing regulations and varying requirements in order to minimize the risk of fines, penalties or judgments,” says Melissa Burdorf, JD, Editorial Team Lead, XpertHR. “To avoid mismanagement of employment law obligations, the HR department for a multistate employer must pay particular attention to certain areas of employment, including criminal history, antidiscrimination and leave laws.”
Ban the Box Laws
The right procedures to screen applicants in a way that does not violate federal, state and/or local law are imperative for all employers, and are particularly complicated for multistate employers. An employer generally may ask a job applicant about his or her criminal history, but there may be restrictions on when in the hiring process the employer may ask. A growing number of states and cities have adopted so called Ban the Box laws, referring to the “box” on employment applications that applicants are asked to check off if they have ever been convicted of a crime.
Generally, the safest course for a multistate employer may be to remove this box from all of its job applications and require all locations to ask at the latest stage of the hiring process that legally applies to any one of its locations.
Antidiscrimination Laws
Sexual orientation and marital status are two common examples of categories afforded protection under state and/or local law that are not currently protected by federal law.
The employment applications used by a multistate employer should contain a statement indicating that the employer is an equal employment opportunity employer and listing the categories protected by applicable federal, state and local law. Because states may provide different protections that are not covered under federal law, and local law may vary from state law, multistate employers must account for these differences in their employment applications.
Leave Laws
Many state and local family and medical leave laws differ in important respects from the federal Family and Medical Leave Act (FMLA). This creates a compliance challenge that multistate employers must address head on by having an HR department that is well-versed in the various state and local laws. Alternatively, to ease administrative burdens, uniform policies can be adopted across all states. Such policies must provide employees with the greatest recognized rights, but that can lead to a financial burden. An employer should consider the costs and benefits based on the historical use of employee leave at different locations, if possible.
Salary History Inquiry Restrictions
Several states and municipalities have passed laws restricting an employer’s ability to seek and/or consider a job applicant’s salary history during the recruiting and hiring process. This trend is part of a broader equal pay movement to close the wage gap between men and women who do the same or similar work.
Many multistate employers use the same employment application regardless of where the job is located or the applicant resides. To take into account state-specific requirements on what should be included in a job application and state prohibitions on requesting certain information, employers using a uniform employment application should segregate and include the requisite state disclosures and prohibitions.
