Ban the Box, living wage, sick pay, and legalized marijuana. These laws are at the cutting edge of employment law, and they are all legislative efforts at the state and city level. With a Republican Congress since 2010, new legislation in the employment law arena has not been a priority, and that is not expected to change under President Trump. If anything, one would expect a roll back of the Affordable Care Act and existing regulations like the increase in the minimum salary threshold under the Fair Labor Standards Act.
The country is rapidly moving toward a human resources professional’s worst nightmare — local governments implementing employment laws on a patchwork basis with differing rules based on city limits and state lines. Imagine the difficulty in implementing a different employment application or sick pay plan depending upon the jurisdiction. This is no longer a minor inconvenience, and local legislation is likely to get worse in the near future. This article will outline the main areas of state and city legislation and the recent laws that warrant the most attention.
Ban the Box
This area of legislation means exactly what it says — banning the box on an employment application that asks about an applicant’s criminal background. Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, and Vermont have banned the question from private employer applications. Additionally, more than 150 cities and counties have some form of ban the box legislation. President Obama also issued an executive order removing the inquiry from the employment applications used by federal agencies and limiting their use of criminal background checks until later in the hiring process.
Ban the Box laws and regulations are especially problematic in that no two laws are the same. Some simply ban the question on an application, while others require special notices or other “hoops” for employers to make an inquiry into an applicant’s background.
In the United States, seven states, 29 cities, two counties, and Washington, D.C. have sick pay laws on the books. All of these laws are different, but the trend seems to be toward requiring 40 hours of sick pay per year for large employers. Although this may not sound onerous, as many large employers already have such benefits available, the devil is in the details.
For example, Connecticut requires an accrual of one hour of sick pay for every 40 hours worked. In California, however, the required accrual rate is one hour of sick pay for every 30 hours worked. These small differences are critical and enough to make an employer operating in multiple jurisdictions pull its hair out in frustration.
This year will likely be remembered as the year the United States reached the tipping point on legalized marijuana. More than half of the states now allow some form of medical marijuana use. Eight states, and Washington, D.C., allow legal adult recreational marijuana use. In states like Colorado and Washington, cannabis is fast becoming a billion-dollar industry.
Like any other cultural shift, there has been a substantial effect on the workplace in affected states. Employers in states with legalized marijuana must wrestle with difficult questions involving drug testing and whether employees can be fired for lawful marijuana use on their free time.
With a Republican president and Congress, it is highly unlikely there will be an increase in the federal minimum wage in the next four years. That said, Bernie Sanders (and Hillary Clinton later) ran on a promise to raise the minimum wage to $15 per hour. That effort is alive and well on the state and local level and will continue notwithstanding the presidential election.
This year, a number of large states voted to increase the minimum wage. For example, voters passed a minimum wage increase in Arizona, Colorado, Maine, and Washington in 2016. City and state legislatures also passed wage increases in New York City, California, and Oregon.
How to Manage in 2017 and Beyond
Some practical steps to manage this patchwork of new local lawmaking include:
Monitor legislative trends and consider modifying policies or practices for all employees once a “critical mass” of jurisdictions with company facilities pass a law or requirement.
Plan for state or local “inserts” for employee handbooks. Add disclaimers to handbooks making clear that company policies apply only to the extent they are not inconsistent with state or local laws.
Join local HR associations or trade groups that monitor local legislation and provide regular updates on developments.
What all of this means for employers is that everything about the employment relationship is now being regulated at every step of government, down to the city or county level. The minimum wage or benefits required in facilities a few miles apart may be different if the facilities are separated by a city limit sign. For large employers, these developments are especially troubling because centralized human resources staff must now keep up with not just 50 states, but hundreds of city and county laws. This trend, however, appears to be here to stay, and the days of largely uniform federal employment laws governing the workplace may, unfortunately, be a thing of the past.