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State snapshot

Key considerations
Which issues would you most highlight to someone new to your state?

In many aspects of labor and employment law, Wyoming follows federal law. Highlights of some key state law differences are as follows:

  • Wyoming prohibits the termination of an employee without cause for one year after the employee returns from a military leave of absence.
  • Employers cannot require that employees or prospective employees refrain from using tobacco products off duty, or otherwise discriminate against an employee for use or non-use of tobacco products outside of his or her employment.
  • Although not addressed in state law, sexual orientation and gender-identity discrimination are prohibited in the city of Laramie.

What do you consider unique to those doing business in your state?

Unlike most other states, Wyoming has no individual or corporate income taxes. It has a state sales tax of 4% and permits local governments to collect up to an additional 2%, if approved by voters.

Wyoming’s economy is driven by energy and mineral extraction (e.g., oil, gas, coal, and wind), tourism, agriculture, and government jobs.

Is there any general advice you would give in the labor/employment area?

Employment in Wyoming is presumed to be at will. Practitioners generally should plan to comply with federal labor and employment laws, but be aware of those areas where Wyoming law may differ – for example:

  • protections against discrimination based on off-duty use of tobacco products;
  • restrictions on terminating employees who have returned from military leave; and
  • the local ordinance in the city of Laramie that protects against sexual orientation and gender-identity discrimination.

Emerging issues
What are the emerging trends in employment law in your state, including the interplay with other areas of law, such as firearms legislation, legalization of marijuana and privacy?

Attempts to raise the Wyoming minimum wage have failed to achieve support in the past.

Wyoming has not legalized marijuana for any purpose. Numerous bills are expected to be considered by the Wyoming legislature in 2016 regarding legalization of marijuana.

In the 2015 legislative session, the legislature nearly passed an amendment to state law to extend discrimination protection on the basis of sexual orientation and gender identity.

Proposals for reform
Are there any noteworthy proposals for reform in your state?

In the 2016 Wyoming legislative session, several employment-related bills have been proposed, including bills to:

  • raise the state minimum wage;
  • relax criminal marijuana laws;
  • authorize private employers to grant hiring and promotion preference to veterans and their spouses; and
  • prohibit job application questions about criminal history (“ban the box”). 

It is unclear whether any of these bills will get enacted during the 2016 legislative session.

Employment relationship

State-specific laws
What state-specific laws govern the employment relationship?

Title 27 of the Labor and Employment Wyoming Statutes contains the majority of the laws governing employer-employee relationships, including:

  • payment of wages;
  • fair employment practices;
  • unemployment; and
  • workers’ compensation. 

Wyoming’s Administrative Rules include rules governing:

  • labor standards;
  • unemployment issues;
  • workers’ compensation; and
  • other employment-related rules.

Most applicable rules can be found under rules for the Department of Workforce Services.

Who do these cover, including categories of workers?

Depending on the specific provision, these laws generally cover employees. Some provisions, including fair employment practices laws, also apply to applicants for employment.

Misclassification
Are there state-specific rules regarding employee/contractor misclassification?

Wyoming has no specific independent contractor misclassification law. Past efforts to enact such a law have failed to garner sufficient votes in the Wyoming legislature.

For both workers’ compensation and unemployment purposes, an ‘independent contractor’ is defined as an individual who performs services for another individual or entity and:

  • is free from control or direction over the details of the performance of services by contract and by fact;
  • represents his or her services to the public as a self-employed individual or independent contractor; and
  • can substitute another person to perform his or her services (Wyo. Stat. §27-14-102(xxiii); §27-3-104).

Contracts
Must an employment contract be in writing?

No, an express contract for employment may be made either orally or in writing (Finch v. Farmers Co-Op Oil Co. of Sheridan, 2005 WY 41, 109 P.3d 537 (Wyo. 2005)). However, an employment agreement that by its terms is not to be performed within one year of making the agreement must be in writing to be enforceable (Wyo. Stat. §1-23-105; Finch v. Farmers Co-Op Oil Co. of Sheridan, 2005 WY 41, 109 P.3d 537 (Wyo. 2005)).

Employee handbooks, personnel policies, letters of employment, performance evaluations, and a course of dealing may constitute an implied employment contract, absent a clear and conspicuous disclaimer stating that the handbook or policies do not establish, and are not to be implied to create, a contract (Trabing v. Kinko’s, Inc., 2002 WY 171, 57 P.3d 1248 (Wyo. 2002)).

Are any terms implied into employment contracts?

All employment relationships in Wyoming are based on a contract. Unless otherwise addressed in an express contract, all employment contracts in Wyoming are presumed to be at will. Every employment contract contains an implied covenant of good faith and fair dealing, whether at will or for cause (Wilder v. Cody Cty. Chamber of Comm., 868 P.2d 211 (Wyo. 1994)). Also, if an employer promises employment for a specified time, makes statements limiting the circumstances under which employment can be terminated, or publishes rules or policies which imply that employment will be terminated only for cause, an implied contract may arise which negates the usual presumption of at-will employment.

Are mandatory arbitration agreements enforceable?

Under Wyoming law, a written agreement to submit any existing or future controversy to arbitration is valid, enforceable and irrevocable, except on grounds which exist for the revocation of the contract. This includes arbitration agreements between employers and employees or between their respective representatives (Wyo. Stat. §1-36-103).

How can employers make changes to existing employment agreements?

Oral modifications of an existing contractual agreement are permissible. However, the general rule is that if an original agreement was required to comply with the statute of frauds, any material modification of that agreement must also conform to the statute of frauds (Roussalis v. Wyoming Med. Ctr., 4 P.3d 209, 242 (Wyo. 2000) citing Allen v. Kingdon, 723 P.2d 394, 396–97 (Utah 1986)). One exception is where a party has changed position by performing an oral modification so that it would be inequitable to permit the other party to found a claim or defense on the original agreement as unmodified. Also, if an employment contract includes terms which negate the at-will presumption, the employer must give consideration to the employee to reinstate at-will employment (Brodie v. Gen. Chem. Corp., 112 F.3d 440 (10th Cir. 1997)).

Hiring

Advertising
What are the requirements relating to advertising open positions?

Wyoming has no law specifically related to advertising open job positions. Employers must comply with the anti-discrimination provisions of the Wyoming Fair Employment Practices Act (Wyo. Stat. §27-9-105.3). 

Background checks
What can employers do with regard to background checks and inquiries?

(a) Criminal records and arrests

Wyoming law does not restrict an employer’s use of criminal history records for both arrests and convictions.

(b) Medical history

Under Wyoming’s Fair Employment Practices Act, which prohibits discrimination on the basis of disability (among other things), employers cannot take adverse action against an applicant or employee because of genetic information. ‘Genetic information’ is defined as information about an individual’s genetic tests, the genetic tests of his or her family members, or occurrences of disease or disorder among his or her family members (Wyo. Rules, Dept. of Workforce Servs., Labor Standards, Ch. 5, Sec.2(f)).

(c) Drug screening

Wyoming has no state law regulating drug and alcohol testing. However, courts have addressed the reasonableness of employer testing (e.g., Employment Sec. Comm’n v. Western Gas Processors, Ltd., 786 P.2d 866 (Wyo. 1990)).

Employers can receive a discount on workers’ compensation premiums by participating in a drug and alcohol testing program approved by the Wyoming Workers’ Safety and Compensation Division (Wyo. Stat. §27-14-201(o); Wyo. Rules, Dept. of Workforce Servs., Workers’ Compensation Div., Ch. 2, Sec.8).

(d) Credit checks

Wyoming has no law restricting how employers can use credit reports.

(e) Immigration status

There is no Wyoming law regarding immigration or employment eligibility verification.

(f) Social media

No Wyoming law addresses social media in the context of employment.

(g) Other

Under Wyoming’s Fair Employment Practices Act, employers cannot require that employees or prospective employees refrain from using tobacco products off duty, or otherwise discriminate against an employee for use or non-use of tobacco products outside of his or her employment. An exception may apply if there is a bona fide occupational qualification that an individual not use tobacco products outside the workplace (Wyo. Stat. §27-9-105).

Wage and hour

Pay
What are the main sources of wage and hour laws in your state?

Chapter 4 of Title 27 of the Wyoming Labor and Employment Statutes on Wages.

What is the minimum hourly wage?

As of January 1 2016 Wyoming’s minimum wage is $5.15 per hour. This is less than the federal minimum wage, so all employees covered under the federal Fair Labor Standards Act must be paid the higher federal minimum wage of $7.25 per hour. Employees receiving tips of at least $30 per month can be paid a cash wage of $2.13 per hour, if the cash wage and tips total at least the hourly minimum wage. Workers under 20 years of age can be paid a training wage of $4.25 per hour for the first 90 days of employment (Wyo. Stat. §27-4-202).

What are the rules applicable to final pay and deductions from wages?

An employee who is voluntarily or involuntarily terminated from employment must be paid all wages due no later than the employer’s usual practice on regularly scheduled payroll dates (Wyo. Stat. §27-4-104). On a temporary layoff or suspension of work due to a labor dispute, affected employees must be paid all wages due on the next regular payday (Wyo. Stat. §27-4-101(d)).

Generally, deductions from wages are permitted as required by law or court order, or with written authorization by the employee in accordance with the state’s offset rules – for example, for:

  • union dues;
  • contributions to health, welfare, retirement, or other benefit plans;
  • deposits to a financial institution; and
  • the cost of tools, equipment, uniforms and other items (Wyo. Stat. §27-4-101; Wage Offset Rules, Ch. I, Sec. 6(b)).

Deductions are permitted for damages caused by the employee’s negligence or for cash shortages under certain conditions (Wyo. Stat. §27-4-116; Wage Offset Rules, Ch. I, Sec. 6(b)).

All deductions from wages for each pay period must be shown on an itemized statement (Wyo. Stat. §27-4-101).

Hours and overtime
What are the requirements for meal and rest breaks?

Wyoming law does not require that employers provide meal or rest breaks. If employers choose to provide meal or rest periods, they should determine whether such periods must be paid under the federal Fair Labor Standards Act.

What are the maximum hour rules?

Employers in Wyoming generally can require employees to work any length of working day and can discipline or terminate employees who do not perform duties or hours as assigned. An exception exists for state and county employees and mining employees (Wyo. Stat. §27-5-101, 102).

Minors under 16 years of age may be limited on the number of hours they work, depending on whether the work is performed on school days (Wyo. Stat. §27-6-110-114).

For overtime purposes, Wyoming does not require overtime for employees of private employers. 

How should overtime be calculated?

Wyoming has no state law governing overtime for employees of private employers. Any overtime obligations and exemptions would flow from federal law under the Fair Labor Standards Act.

What exemptions are there from overtime?

Wyoming has no state law governing overtime for employees of private employers. Any overtime obligations and exemptions would flow from federal law under the Fair Labor Standards Act.

Record keeping
What payroll and payment records must be maintained?

Wyoming law requires that the following records be kept by employers for a two-year period for each employee:

  • employee’s name, address, and occupation;
  • amount paid each pay period;
  • rate of pay; and
  • hours worked each day and each working week (Wyo. Stat. §27-3-502; 27-4-203).

Wyoming employers must maintain unemployment compensation records for four years (Wyo. Dept. of Workforce Servs., Unemployment Ins. div., Records and Reports, Ch. 11, Sec. 1).

Federal payroll record keeping requirements exist under the Fair Labor Standards Act.

Discrimination, harassment and family leave

What is the state law in relation to:
Protected categories

(a) Age?

The Wyoming Fair Employment Practices Act applies to employers with two or more employees. It makes it a discriminatory or unfair employment practice to refuse to hire, discharge, promote or demote, or discriminate in matters of compensation, or the terms, conditions or privileges of employment against any person otherwise qualified because of age (40 years or older) (Wyo. Stat. §27-9-105).

(b) Race?

The Wyoming Fair Employment Practices Act applies to employers with two or more employees. It makes it a discriminatory or unfair employment practice to refuse to hire, discharge, promote or demote, or discriminate in matters of compensation, or the terms, conditions or privileges of employment against any person otherwise qualified because of race (Wyo. Stat. §27-9-105).

(c) Disability?

The Wyoming Fair Employment Practices Act applies to employers with two or more employees. It makes it a discriminatory or unfair employment practice to refuse to hire, discharge, promote or demote, or discriminate in matters of compensation, or the terms, conditions or privileges of employment against a qualified disabled person (Wyo. Stat. §27-9-105). A “qualified disabled person” is defined as a disabled person who is capable of performing a particular job, or who would be capable of performing a particular job with reasonable accommodation to his or her disability.

(d) Gender?

The Wyoming Fair Employment Practices Act applies to employers with two or more employees. It makes it a discriminatory or unfair employment practice to refuse to hire, discharge, promote or demote, or discriminate in matters of compensation, or the terms, conditions or privileges of employment against any person otherwise qualified because of gender (Wyo. Stat. §27-9-105).

(e) Sexual orientation?

Wyoming does not treat sexual orientation or gender identity as a protected class.

Laramie became the first municipality in the state to pass a local ordinance that prohibits employment discrimination on the basis of sexual orientation and gender identity.

(f) Religion?

The Wyoming Fair Employment Practices Act applies to employers with two or more employees. It makes it a discriminatory or unfair employment practice to refuse to hire, discharge, promote or demote, or discriminate in matters of compensation, or the terms, conditions or privileges of employment against any person otherwise qualified because of religion (Wyo. Stat. §27-9-105).

(g) Medical?

Under Wyoming’s Fair Employment Practices Act, which prohibits discrimination on the basis of disability (among other things), employers cannot take adverse action against an applicant or employee because of genetic information. ‘Genetic information’ is defined as information about an individual’s genetic tests, the genetic tests of his or her family members, or occurrences of disease or disorder among his or her family members (Wyo. Rules, Dept. of Workforce Servs., Labor Standards, Ch. 5, Sec.2(f)).

(h) Other?

Additional protected classes under Wyoming law include color, national origin, ancestry, and pregnancy (Wyo. Stat. §27-9-105).

Under Wyoming’s Fair Employment Practices Act, employers cannot require employees or prospective employees to refrain from using tobacco products off duty, or otherwise discriminate against an employee for use or non-use of tobacco products outside of his or her employment. An exception may apply if there is a bona fide occupational qualification that a person not use tobacco products outside the workplace (Wyo. Stat. §27-9-105).

Harassment
What is the state law in relation to harassment?

No Wyoming law specifically addresses harassment in the workplace. However, the Wyoming Supreme Court has interpreted the state Fair Employment Practices Act as encompassing harassment claims (Hoflund v. Airport Golf Club,2005 WY 17, 105 P.3d 1079 (Wyo. 2005)). In addition, harassment allegations may give rise to a claim for intentional infliction of emotional distress (Kanzler v. Renner, 937 P.2d 1337 (Wyo. 1997)). 

Family and medical leave
What is the state law in relation to family and medical leave?

Wyoming has no state family and medical leave law. 

Privacy in the workplace

Privacy and monitoring
What are employees’ rights with regard to privacy and monitoring?

Wyoming law on privacy is not well developed. The Wyoming Supreme Court has ruled that an employee cannot sustain an invasion of privacy claim against his or her employer based on the employer’s comments related to the manner and reasons for discharging the employee (Jewell v. North Big Horn Hosp. Dist., 953 P.2d 135 (Wyo. 1998)).

Intercepting any oral, wire, or electronic communication is unlawful, except when the person intercepting is a party to the communication or when one of the parties has given prior consent (Wyo. Stat. §7-3-702(a)(i)).

Are there state rules protecting social media passwords in the employment context and/or on employer monitoring of employee social media accounts?

There is no Wyoming law on the access or use of social media in the employment context.

Bring your own device
What is the latest position in relation to bring your own device?

Wyoming law does not address the issue of bring your own device.

Off-duty
To what extent can employers regulate off-duty conduct?

Under Wyoming’s Fair Employment Practices Act, employers cannot require employees or prospective employees to refrain from using tobacco products off duty, or otherwise discriminate against an employee for use or non-use of tobacco products outside of his or her employment. An exception may apply if there is a bona fide occupational qualification that a person not use tobacco products outside the workplace (Wyo. Stat. §27-9-105).

Gun rights
Are there state rules protecting gun rights in the employment context?

Wyoming law does not address guns or weapons in the workplace.

Trade secrets and restrictive covenants

Intellectual Property
Who owns IP rights created by employees during the course of their employment?

In the absence of an agreement or policy specifying ownership of inventions, Wyoming follows the general rule that if an employee’s job duties include the responsibility for inventing, or solving a particular problem that requires invention, any invention created by that employee during the performance of these responsibilities belongs to the employer. However, an employee who is not hired to invent is the owner of any invention discovered during employment (Preston v. Marathon Oil Co., 2012 WY 66, 277 P.3d 81 (Wyo. 2012)).

Restrictive covenants
What types of restrictive covenants are recognized and enforceable?

Wyoming has no general statute or regulation governing non-compete agreements or other restrictive covenants. Wyoming courts impose a high burden on employers which seek to protect their trade secrets and confidential information through restrictive covenants. To enforce a non-compete agreement, the employer must show that:

  • the contract is fair;
  • the covenants are reasonable as to duration and geographic scope; and
  • it is necessary to protect a legitimate business interest of the employer (CBM Geosolutions, Inc. v. Gas Sensing Technology Corp., 2009 WY 113, 215 P.3d 1054 (Wyo. 2009)).

Wyoming has adopted the Uniform Trade Secrets Act (Wyo. Stat. §40-24-101 et seq.).

Non-compete
Are there any special rules on non-competes for particular classes of employee?

Wyoming prohibits any agreement that restricts a lawyer from practising after termination of an employment, partnership, or shareholder relationship (Wy. R. of Prof’l Conduct 5.6). 

Labor relations

Right to work
Is the state a “right to work” state?

Yes, Wyoming is a “right to work” state.

Unions and layoffs
Is the state (or a particular area) known to be heavily unionized?

According to the Bureau of Labor Statistics, Wyoming has a relatively low level of unionization in its workforce, estimated to be about 7%.

What rules apply to layoffs? Are there particular rules for plant closures/mass layoffs?

Wyoming has no law regarding plant closures or mass layoffs for private employers. 

Discipline and termination

State procedures
Are there state-specific laws on the procedures employers must follow with regard to discipline and grievance procedures?

Wyoming has no law governing private employers with regard to discipline and grievance procedures.

At-will or notice
At-will status and/or notice period?

Wyoming is an at-will state, so all employees who are employed for an indefinite period are presumed to be employees at will.

What restrictions apply to the above?

The at-will status may be modified by an express or implied contract. Employee handbooks, personnel policies, letters of employment, performance evaluations, and a course of dealing may modify the at-will relationship or otherwise create contractual liability for an employer (Trabing v. Kinko’s, Inc., 2002 WY 171, 57 P3d. 1248 (Wyo. 2002)). An employer’s right to discharge an employee at will is also limited by a limited public policy exception, prohibiting terminations in retaliation for exercising rights under the Wyoming Workers’ Compensation Act (Griess v. Consol. Freightways Corp., 776 P.2d 752 (Wyo. 1989)).

In addition, Wyoming law prohibits the termination of an employee without cause within one year of returning from a military leave of absence (Wyo. Stat. §19-11-104).

Final paychecks
Are there state-specific rules on when final paychecks are due after termination?

An employee who is voluntarily or involuntarily terminated from employment must be paid all wages due no later than the employer’s usual practice on regularly scheduled payroll dates (Wyo. Stat. §27-4-104). On a temporary layoff or suspension of work due to a labor dispute, affected employees must be paid all wages due on the next regular payday (Wyo. Stat. §27-4-101(d)).