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Employers faced with a complex array of workplace regulations must do the “toggle” and go back and forth between federal, state and local laws to ensure that they are complying with all three, Camille Olsen, an attorney with Seyfarth Shaw LLP in Chicago, told attendees March 10 at the 2008 SHRM Employment Law & Legislative Conference in Washington, D.C.
Although certain federal laws, such as the National Labor Relations Act and the Employee Retirement Income Security Act, will pre-empt state laws operating in the same areas, Congress did not intend most federal employment laws to occupy the field, Olsen said. Therefore, even a single-state employer is subject to state as well as federal regulation of its nondiscrimination obligations, wage and hour responsibilities, and leave and privacy policies. And, in addition, many municipalities have passed employment ordinances, further muddying the waters.
To complicate matters even more, in recent years, federal and state employment laws have been subject to increasing scrutiny by Congress and the state legislatures, as well as the courts. “The status quo is dynamic,” Olsen noted. “It changes daily,” HR professionals therefore must have some mechanism in place to ensure that the organization’s policies and practices are up to date.
“Do we need a local expert or local expertise? I believe the answer is ‘yes,’ ” she said.
Changing Federal Employment Laws
2007 saw a great deal of congressional activity with regard to the regulation of employment. On May 25, H.R. 2 became law, raising the federal minimum wage of $5.15 by $2.10 in three steps within two years and two months of enactment.
Legislation to expand the Family and Medical Leave Act (FMLA) to cover family members who need time off to care for injured soldiers passed both the House and the Senate before it was initially vetoed by the president. However, it resurrected weeks later and was signed into law on Jan. 28, 2008.
In addition, although the Employee Free Choice Act did not pass in 2007, and legislation aimed at discrimination based on sexual orientation stalled, Olsen noted that most experts agree that “we have not heard the last of these laws.”
In addition, bills are presently pending in Congress that would:
Many of these proposals are based on laws already operating in the states, Olsen said. However, there has been little litigation under a number of these laws, she noted, and so it is not all together clear what changes would occur were the laws to be implemented on the federal level.
State Laws May Grant More Protection
In 2007, a record number of states increased their minimum wage level above the new federal standards, and a number of state legislatures passed protections for military families and those claiming sexual orientation discrimination.
In addition, in 2007, multiple states passed laws regulating in areas including:
The most active states were Hawaii, Illinois, Maine, New York, North Carolina, Oregon Texas and Virginia, Olsen said. In fact, only four states did not pass any labor legislation in 2007: Arkansas, Mississippi, Pennsylvania and South Carolina.
In addition to the sheer numbers of state laws, employers and HR must be mindful of all the ways that these laws may differ from their federal counterparts, Olsen emphasized.
This all makes it essential for an employer to do the “toggle”—check federal, state and local laws and consistently comply with all three. Not an easy task, Olsen conceded.
Multistate Employers Seek Consistency
And what about the multistate employer? Not only must that company ensure compliance with a myriad of overlapping laws, it is likely to strive for some consistency across its workplaces.
Such an employer has two choices, Olsen said. It can adopt universal policies as far as possible but carve out specific rules for each state in which it does business. Or it can take the laws of the most liberal or “employee-friendly” state and apply them across the board. This is not a legal question, she noted, but a human resources question that each organization must answer for itself.
Joanne Deschenaux, J.D., is SHRM’s senior legal editor.
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