It is no secret these days that many workforces, particularly over the last five years, are now subject to numerous state and municipal laws that seek to shape and regulate numerous areas of the workplace (many of which are often conflicting) . Given the gridlock that has been in place for almost a decade in Congress, state legislatures and cities have accelerated their oversight of employers and have imposed their own laws.
In fact, there are literally hundreds of examples of how the scope of local regulation has changed, but perhaps the most breath-taking took place this year in the “City of Brotherly Love” when Philadelphia created the legal authority to shutdown a business located within its confines, for an undefined period of time, if the business “severely” or “repeatedly” violates its anti-discrimination laws under a bill signed into law on June 22. Besides the questionable constitutionality of this law, one of the major drawbacks with respect to many “local laws” like Philadelphia, is that they often come without any clear guidance as to exactly how they will be enforced.
For example, this ordinance provides that violations which are considered serious can subject a business to closure, but is unclear exactly what is considered serious or what number of repeated violations would lead to a business shutdown. Besides the obvious issues for employers, risk managers and insurers should be very careful when measuring whether the traditional levels of risk and exposure will have to be readjusted in today’s workplace. To be frank, it is unclear that most HR professionals even have the local resources at their disposal to stay on top of each new development absent a system designed to constantly monitor all workplace locations on an ongoing basis.
Another recent example, is that Washington, D.C. has now implemented a wage statute applicable to both blue collar and executive employees that provides for rather draconian penalties, and in cases of alleged retaliation actually shifts the burden of proof to the employer to show it would have taken the same action against an employee, absent any issues pertaining to a dispute over wages.
New York City (and many other cities and states) have forbidden “preemployment questions” about criminal background, i.e., so-called “ban the box ” laws. In fact, so many states and cities now have such a requirement, that employers who continue to use vendors, who are not cognisant of these laws, are likely in violation of them. Similarly, New York City and many other cities have laws that make it unlawful to ask an applicant or candidate about credit history, except in certain limited circumstances.
Ultimately, tremendous differences exist among the states and cities, particularly in different regions of the country. Some regions like the Southeast have somewhat limited law at the state level, often relying on federal law, while other states that have extensive laws that go way beyond federal law in scope. In fact, given the number of differences it is exceedingly hard to even attempt use one employee handbook for a national workforce, such that employers have been rolling out state specific models.
Another area in play are state and city minimum wage laws and overtime. For example, New York has increased the minimum salary required for employees to be considered “exempt” from overtime. Thus, it is critical for employers to understand that many states are rapidly ramping up overtime wage requirements, even though the federal government recently placed the DOL’s new overtime requirements on hold. But that is the point, one should not be guided only by federal law, but must be extremely focused on state and city enactments.
As one might imagine, San Francisco’s employment laws are dramatically different than almost anywhere else in the United States. In fact, it is definitely the case, that any employer contemplating opening operations in San Francisco must go through an extensive review of city employment laws, minimum wage ordinances, sick leave laws, and healthcare security ordinances (which guarantee an minimum amount per hour for healthcare contributions for employees who work at least 8 hours in San Francisco).
Read the full article in Modern Restaurant Management magazine.