HR Management

Doing the ‘Toggle’: Managing Both State and Federal Employment Laws

If you’ve fully complied with federal law, your job is not done. Your state probably has laws that overlap, or even conflict with, the federal laws. Here are the issues where that’s most likely to happen.

Ever hear of the ‘toggle’?

It’s a maneuver most HR professionals execute every day—jumping between state and federal law requirements in the workplace. These often overlap and sometimes conflict, so it’s no easy task to sort out how to comply.

According to Camille Olson, partner with the law firm of Seyfarth Shaw, LLP, recognizing the areas in which conflicts most often occur is the first step to preventing mistakes. Speaking at SHRM’s 2006 Employment Law & Legislative Conference, she listed these key areas of conflict:

1) Antidiscrimination Laws

Employer size. The federal antidiscrimination laws—Title VII of the Civil Rights Act, ADEA, the ADA, and USERRA—protect employees in organizations with 15 or more employees (Title VII and ADA), 20 or more employees (ADEA), or regardless of employer size (USERRA). In comparison, most states have established antidiscrimination laws that cover employers with anywhere from 1 employee (Alaska, Colorado, and Michigan) to 12 (West Virginia). As a result, employers not covered by federal statutes need to find out if they’re included under state laws.

Protected classes. Under federal law, employees are protected from discrimination based on sex, race, ethnicity, age, national origin, disability, and service in the armed services. A majority of states have expanded this list, adding sexual orientation and gender identity, the use of lawful products (smoking), genetic discrimination, and HIV/AIDS and sickle-cell trait testing.

States have also legislated protections for employees based on an employee’s arrest, conviction, military records, and marital status. Consider if there’s an expanded list in your state when determining if illegal behavior has occurred.

2) Leaves of Absence

To date, 10 states and the District of Columbia have adopted FMLA-like laws, says Olson. Those states generally follow the federal FMLA, with a few critical exceptions. For example, Connecticut allows for 16 weeks of protected family leave in a 24-month period versus 12 weeks in 12 months under FMLA.

In addition, many states have medical leave provisions for organ, bone marrow, and blood donation and leave for crime victims or school visitation or other family obligations. Familiarity with your state’s leave law is critical to properly granting leave.

3) Wage-Hour Provisions

Minimum wage. The federal Fair Labor Standards Act (FLSA) is often supplemented by state laws on minimum wage, overtime, and meal or break periods. Some 17 states and the District of Columbia have minimum wage rates that exceed the federal rate of $5.15 per hour. The range goes as high as $7.63 per hour in Washington State.

Overtime. Many states also diverge from the federal standard of overtime for all hours worked past 40 per week. Alaska requires overtime after 8 hours per day, and Colorado requires it beyond 12 hours in a day. Other states have overtime requirements for specific industries in which overtime is frequent. In New York, for example, all hours worked by “resort employees” on the seventh consecutive workday are at an overtime rate.

Meal or Break Periods. Federal FLSA does not regulate meal or break periods but some states do, varying the type and length of break by type of employee or the work being done. In Illinois, adults get 20-minute breaks, minors get 30 minutes, and hotel attendants 30 minutes, regardless of age.

4) Identity Theft

Under the federal Fair Access to Credit Transactions Act (FACTA), employers must take reasonable measures to protect consumer information. What constitutes “reasonable” will depend on the size of the company and the type of confidential information it generates or obtains. Employers that lose employee information can be fined by federal and state government, and sued in civil court.

Arkansas, Colorado, Georgia, Michigan, Montana, Nevada, North Carolina, Texas, Washington, and Wisconsin, however, have added laws that require the proper destruction of personal information. Some 20 states also govern the maintenance of personal information, requiring employee notification if security is breached.

Social Security information. A final area to look at, says Olson, is barring or restricting the use of an employee’s Social Security number. Currently, 11 states have protections or prohibitions in this area.

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