Hear How Multistate US Employers Can Avoid Liability

A host of fast-moving employment trends like paid sick leave, domestic violence leave and ban the box are affecting US employers in certain regions, but not others. So what’s a vigilant multistate employer to do to steer clear of litigation?

A new XpertHR podcast examines these trends with San Francisco employment attorney Michelle Barrett Falconer, the co-chair of the Leaves of Absence and Disability Accommodation Practice Group at Littler Mendelson.

“The biggest tip I can provide to employers is to set up an annual review process for your policies and procedures,” said Falconer. By regularly updating their employee handbooks, employers will go a long way towards compliance in multistate situations, she contends. During our conversation, Falconer made a number of other key observations for employers to consider.

1. One Size May Not Fit All

Speaking of employee leaves of absence generally, Falconer commented on the difficulty for any multistate employer of having a one-size-fits-all policy. For instance, she notes that the number one question she receives concerns how much leave is enough.

Pointing to the varying state laws, Falconer observes, “It’s very frustrating for employers because there is no one, single answer to that question. What may be enough leave in one circumstance may not be enough in another.”

Three states and 14 cities have adopted paid sick leave laws, including Massachusetts in the November election. Meanwhile, domestic violence victims are emerging as a new, protected class who may be entitled to leave in certain states.

2. Do More Than the Minimum

The San Francisco attorney adds it is not enough simply to provide the minimum number of weeks mandated by the Family and Medical Leave Act. “You have to look at the particular situation, the employee’s medical situation, is it a disability or not?”

For instance, pregnancy historically was thought to be a transitory condition that was not really a disability. According to Falconer, that notion is changing and may depend on the type of job the employee performs. In fact, the Supreme Court will hear arguments next month in a case, Young v. United Parcel Service, involving whether, and in what circumstances, an employer must offer work accommodations to pregnant employees.

3. Build a Degree of Flexibility Into the Process

When it comes to hiring, Falconer says it is OK for an organization to seek out a standard to guide its decisions. But she is quick to add, “You’ve got to build into that process a degree of flexibility so you’re not just saying anybody who has a criminal conviction will not be hired.”

Falconer explains that an inflexible standard not only may exclude a good pool of qualified, rehabilitated applicants, but also could run afoul of employment laws (such as Title VII of the Civil Rights Act). That’s why she says keeping up with legal trends in this area is so important.

Listen to the latest US podcast for more insights from Falconer on key developments to watch affecting multistate employers.

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