Running a business and managing employees can be extremely challenging – especially when an employer and HR need to comply with federal, state and municipal requirements.
An employer must stay on track and manage the unique interplay of a myriad differing laws, including those governing equal employment opportunity, leave, minimum wage, reasonable accommodations, meal and rest breaks, background checks, and electronic cigarettes.
So what can an employer to do?
1. Know the Legal Requirements
In order to manage effectively the interplay of federal, state and municipal laws, an employer must be thoroughly familiar with the requirements of each law and ordinance. An employer should monitor legal developments as they arise, particularly in areas such as EEO, leave, background checks and minimum wage.
A number of municipalities, including Chicago, Los Angeles, New York, San Diego and Seattle, have adopted their own local minimum wages. Some municipalities have even taken things one step further and adopted minimum wages covering specific groups of employees, such as fast food workers in New York City. Counties such as Johnson County in Iowa, Louisville-Jefferson County in Kentucky, Montgomery and Prince George’s Counties in Maryland, and Nassau, Suffolk and Westchester Counties in New York, have adopted separate minimum wages.
An employer should also be familiar with the latest workplace forms and postings, as many state and municipal agencies enforce notice-posting requirements.
Jason Habinsky, a partner at Haynes and Boone in New York, suggests that an employer designate someone internally, most often an HR professional, to be the point person for monitoring new laws and developments in any jurisdiction where the employer has employees. This should be a necessary and essential part of a job description, and the individual should make sure to consult websites such as XpertHR to provide updates on the latest legal requirements. Outside employment lawyers can also aid in keeping an employer in the loop with respect to new laws and trends affecting the workplace.
Habinsky cautions that it is important to keep in mind that if federal, state and municipal statutes vary or conflict, or if one of the laws is silent on an issue, the employer must comply with the law providing the greatest rights to the employee. Otherwise, the employer risks a lawsuit.
2. Make Sure Employee Handbook Policies Are Compliant
An employer should consider adopting broad workplace policies in employee handbooks that encompass federal, state and municipal requirements – thereby fulfilling an employer’s obligations.
Habinsky explains that adopting policies on a national or statewide level, which incorporate the most generous state and municipal employment laws, will allow for:
• Uniformity across the workforce; and
• Less administrative work updating policies.
For example, an employer covered under federal, state and municipal fair employment laws should strongly consider adopting a statement in its handbook aimed at promoting a workplace that is free of unlawful workplace discrimination and harassment and making sure to notify employees about protected classes under the most comprehensive law.
Alternatively, Habinsky states that an employer may wish to use state or city addenda for employee handbooks. In this manner, the employer may update policies as necessary without having to continually modify the primary employee handbook. For example, Philadelphia has specific requirements regarding leave for domestic violence, sexual assault or stalking victim leave as well as sick time: it may be helpful to have policies specific to these employees as an add-on to an employee handbook.
3. Keep Adequate Records and Documentation
An employer should maintain thorough records and documentation, and create proper internal controls, in order to avoid any confusion. Adequate records should be kept regarding a number of employment areas, including:
• Recruiting and hiring;
• Employee compensation and benefits; and
• Performance and discipline.
This documentation may prove critical when defending a lawsuit, or during an audit by a state or city government agency. For instance, paid sick leave laws, now adopted in almost 30 municipalities and several states, are extremely complex and have different coverage, eligibility, documentation and notice requirements. Well-kept records can aid in synthesizing these state and municipal legal requirements.
4. Train Supervisors on Unique Requirements
Supervisors and those with managerial or hiring authority should be provided with comprehensive training to identify subtle differences between state and municipal laws because these employees directly affect implementation of workplace policies and practices.
For example, approximately more than 100 municipalities have “banned the box” by prohibiting an employer from including questions regarding criminal or felony convictions on job application forms. In addition, New York City has a specific ordinance addressing credit checks. Philadelphia and New York City have specific requirements with regard to lactation and pregnancy accommodations. A supervisor should also be aware of emerging municipal ordinances regarding the use of restrooms by transgender individuals.
Because supervisors can be in the best position to identify these types of issues as they arise in the workplace, training is an essential component to managing the interplay among various complex legal requirements.