Most HR managers keep up with federal law, but state law is another matter—especially when you operate or “have a nexus” in more than one state. Today’s Advisor looks at the areas you need to check.
Hiring and Discrimination
Many states have passed laws that go beyond the federal in coverage, applicability, and what’s required during the hiring process. When setting up hiring procedures, look for rules that affect the following:
- Affirmative Action. For example, many states give preference to veterans in state hiring.
- References. For example, many states offer some degree of immunity for employers responding to requests for references.
- Preemployment inquiries, for example, restrictions on asking about arrests or convictions.
- Title VII equivalents, that is, anti-discrimination laws that go beyond the federal. Example: in Mississippi there is no law about marital status discrimination or sexual orientation discrimination; Maryland protects both categories of discrimination.
- Non compete agreements.
- Testing restrictions (AIDS, genetic, drugs/alcohol, etc.)..
- Requirements for background checks for certain jobs.
- Restrictions on getting and using credit reports.
- New hire reporting requirements. All states have some form of hew hire reporting, however, in many states there is no penalty for non-compliance.
- Immigration-related rules. For example, in Ohio, employers who hire illegal aliens who have contagious diseases must pay any expense causes by the disease.
Wage/Hour
State wage and hours laws display wide differences, especially in these areas:
- Final paycheck timing. Some states require payment to discharged employees within a few days of discharge.
- Permissible wage deductions.
- Minimum wage greater than the federal.
- Garnishment of employee checks. A number of states prohibit the firing of employees over garnishment.
- Overtime. Example: California requires that overtime be paid for work over 8 hours in a day, and also for the first 8 hours worked on the seventh day of work in a given workweek. In addition, some hours must be paid at double the normal rate.
- Payment of commissions.
- Payout of vacation and sick pay. Some states require payout, others do not.
- Child labor restrictions.
- Required meal breaks and rest periods.
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Benefits and Leave
Required coverage of various benefits and leave laws varies dramatically from state to state. Check in particular the following:
- Benefits for unmarried partners ( same sex, civil union, common-law). For example, in Connecticut, wherever in the statutes the terms “spouses,” “family,” “immediate family,” “dependent,” “next of kin,” or any other term denoting the spousal relationship are used or defined, “a party to a civil union shall be included in such use or definition.”
- Health insurance continuation
- Leave laws, including family and medical leave, pregnancy leave, voting leave, military leave, small necessities leave
- Jury duty
- Unemployment compensation
- Workers’ compensation
Recordkeeping
- Right to inspect. Employees’ rights to examine their personnel files are spelled out in many states
- Posters. Many states require their own posters in addition to those required by federal law.
Employment at will
Most states are “at-will” states, but most have a list of exceptions, and those lists are different in most every state. Exceptions typically involve workers’ compensation, safety, public policy, discrimination, whistleblowing, and jury duty. However, in Montana, employment-at-will is not recognized at all; employers must have just cause to terminate an employee who has completed a probationary period.
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Employee Rights
Many states grant employees rights that aren’t mandated by federal law. Most common are the following:
- Off-duty conduct rights. Example: Illinois prohibits discrimination on the basis of the use of lawful products outside the workplace during nonwork hours. Indiana prohibits employers from requiring employees to refrain from off-duty tobacco use. In Kentucky, employers may not make employment decisions based on an employee’s status as a smoker. However, they may have smoke free areas, and give incentives for smoking cessation. In Nebraska, employers may not discharge or threaten to discharge employees on the basis of their political actions or activities.
- Privacy, especially monitoring of phone and other communication devices.
- Breast feeding.
- Labor organizing.
- Whistleblowing protection.
In tomorrow’s Advisor, more on state laws in HR, and an introduction to “The 50-50,” the easy-to-use, chart-based guide to state employment laws.