Whenever there’s a major power shift in government, it’s time to look at employment law again … and especially at federal-state conflicts.
Just over two weeks and counting.
Who’s counting? The Democratic Party, of course, anxiously awaiting the day … January 4th … that their dozen-year exile from control of Congress ends.
When power shifts in a major way, as happened in November, a lot of laws, including employment law, are in flux, both at federal and state levels. For that reason, we thought it worthwhile to visit areas of the law where change is likely, and especially where federal and state requirements often conflict. In such cases, of course, you must follow the statute most favorable to the employee.
We’re helped by Employment Law Attorney Camille Olson, and a talk she gave to a SHRM conference earlier this year. Olson is a partner with the Chicago office of the law firm, Seyfarth Shaw. She noted major “hot spots” where federal and state law conflicts are especially likely. Given the new situation at both levels of lawmaking, it’s wise to keep them in mind.
Hot Spot #1: Protected Leave of Absence.
The expansion of the federal Family Medical Leave Act (FMLA) has been widely discussed among Congressional Democrats, but it’s already been widened by the states. Several grant protected leave to employers with fewer than the federal threshold of 50 workers, and several allow protected leave if an employee is a crime victim, wishes to donate blood or other vital organs, or for other non-federally authorized reasons.
Hot Spot #2: Wage-Hour
If anything defines flux in employment law these days, it’s minimum wage law. A number of states raised their minimum this year, and if the Democrats have their way, a jump in the federal minimum of $5.15/hour will be one of their first priorities in 2007.
The regulation of hours is also a point of federal-state difference. Five states mandate overtime pay beyond the federal requirement of time and a half for any time worked past 40 hours a week. And while federal law makes no provision for meal and break periods, many states do, in a range from 20 minutes to “reasonable” (Vermont and Kentucky) or “sufficient” time (Minnesota), and from 10 minutes to 30 minutes to an hour for minors (Oklahoma) for a break.
Hot Spot #3: Antidiscrimination Law
There’s always been a major federal-state law conflict over the size of organizations covered by antidiscrimination law. Federal guidelines mandate that any business with 15 or more employees comply with all aspects of Title VII, and the Americans with Disabilities Act (ADA.), and any with 20 or more employees also meet requirements of the Age Discrimination in Employment Act (ADEA). But the statutes of 34 states, and the District of Columbia, cover smaller organizations. Ten states and D.C. mandate protection against age bias at businesses with just one worker.
Differences predominate among protected classes as well, with 44 states plus D.C. adding to the federal ban on discrimination based on race, color, age, gender, national origin, or disability.
Several states also protect sexual orientation and gender identity. Users of lawful products (smokers) are another protected class, as are those with an arrest or conviction record. And while ADEA protects workers over the age of 40 from age discrimination, nine states extend that protection to younger ages, down to age 18. Michigan protects all ages.
Several states have also expanded the rights of returning military personnel to reclaim their premilitary jobs, and to be protected for a time from termination from those jobs once they’ve reclaimed them.
While there isn’t space here for a state-by-state breakdown of these laws, BLR does have programs that cover this. Most notable is the well-known “Red Book,” officially titled What to Do About Personnel Problems [ in Your State.] Used by some 20,000 businesses, it’s available for a 30-day no-cost trial. Just request the edition specifically for your state, from the 49 (plus D.C.) offered. Click the link below for full information.
We’ll discuss more federal-state law hot spots (and tell you more about the programs that cover them) in the next Daily Advisor.
For more information or to start a 30 day free trial of your state’s edition of What to Do About Personnel Problems, click here.