Multistate Employers Need to Keep an Eye on Their Employee Handbooks
March 10, 2023
By Michael Burns, courtesy of SBAM approved partner, ASE
Employers that have multistate locations or just employees located in another state (including remote workers) need to monitor those state and local employment related laws and regulations to ensure their employee handbooks stay up to date and in compliance.
This article is not exhaustive of all possible state and local laws that may impact your employee handbook. It will address a couple of policy statement areas where most (not all) handbook policies may require modification or even a separate state-specific policy where required. The article will provide two ASE resources that will allow you to check your handbook for up-to-date state compliance requirements.
Equal Employment Opportunity (EEO) and Harassment Policies – Many states’ non-discrimination laws list protected characteristics that go beyond what Title VII of the federal Civil Right Act states. Michigan for example also covers height, weight, and marital status as additional protected classes. Just recently Michigan added sexual orientation and gender identity to its list of protected characteristics. And many employers are including those protected characteristics in their handbook as well as also adding LGBTQ+ to their EEO policies.
Does every protected classification have to be listed in an employer’s EEO and Harassment policy? Not necessarily but check your state and local laws. All employer EEO and Harassment policies should include at the end of their list of protected characteristics the phrase; “and all other characteristics protected by law.” This covers the myriad of other state and local protected classifications other states have included in their statutes. But check those state laws to make sure your handbook’s list of protected characteristics is the best it should be. Did you know that Seattle, WA just passed a non-discrimination law protecting persons considered members of a Caste? This protection covers workers that are considered in some societies to be members to a class of people that are not regarded as highly as other people of other castes. This societal practice is in India and south Asia. It historically allowed for discrimination against some that were born into a particular level of society there. Look it up. The Seattle law prohibits that practice here.
Another major area of state law change that is impacting employee handbooks is new paid time off laws. These laws are sweeping across the country. As we here in Michigan recently experienced, a Michigan law enacted in 2018 provides for up to forty hours paid time off if your organization is over 50 employees in size. Employee coverage in our law is limited to mostly non-exempt employees if the employer does not want to offer the same benefit to other non-covered employees under the law. Due to a court decision in 2022 this law was almost overturned and a previous law covering many more employers and almost all employees would have become the law here. The lower court decision striking down our current law was overturned taking Michigan back to the law passed in 2018 for now. The case has been appealed to the Michigan Supreme Court.
In other states across the country paid time off laws are being passed more frequently and there is a great variety of other compliance terms in those states. Eligibility thresholds and paid or unpaid leave time off to employees differ, for example. If you have employees in certain locations in California, local county and city ordinances are different than the state law requirements and necessitate their own compliance if employees work in those counties or cities. California alone has a reported 30 + different leave requirements depending upon an employer’s (or employees) location and size.
Many Michigan employers report they have at least one or two employees in California. Because California is so rife with specific employment and labor law specific to that state ASE recommends working with local California legal counsel or a local employers association to keep your handbook up to date. There is a great employers association in Sacramento.
Though you may think of California as an outlier in terms of employer compliance, other states such as Massachusetts and Illinois are quickly catching up with new paid time off requirements. A more recent trend compels keeping an eye out for laws protecting and requiring paid time off for bereavement. As one might guess, California has a bereavement leave law (unpaid in this case) and Illinois just passes one as well. And also check for specific state laws protecting time off to vote. In some areas of the country required time off to vote has been around for some time. However, more and more states are passing protections for this civic duty.
The other big area of ongoing change around protected time off are state parental and family leave laws. Many states are passing their own laws that mimic or extend protections afforded by the federal Family and Medical Leave Act (FMLA). If you have employees in other states, make sure you check for a family and medical leave act law that could extend protections beyond and to smaller employers than is required by the federal law.
Other State’s time away from work protections are extended for jury duty; military duty; victims of crime and sexual or domestic assault; witness; blood, bone marrow, and organ donation; school activities; appearance leave; and even civil air patrol leave and so on are protected.
Other employee handbook compliance areas of concern are specific state overtime, break, and meal time requirements. Also watch out for drug testing and state substance abuse laws that may or in the future prohibit the testing for drugs that are legal in a state.
Michigan has a particular state law that is at least titled differently than most and a policy is required to be in an employer’s handbook if they have one. The Michigan Social Security Number Privacy act requires an employer policy in the handbook. This policy must inform employees that the employer will protect an employee’s social security number from disclosure, and the policy must be a disciplinary term per the law. Other states have laws requiring protection of personal information from theft or unauthorized disclosure. These are often called identity theft laws in other states. You have to know what a law is referred to in a state to check whether the state has its own compliance requirements.
The above is just a part of the growing state laws that impact an employer and may need to be addressed in the employee handbook. A non-exhaustive list of other States with more comprehensive employment law compliance requirements that may impact the employee handbook are Washington, Oregon, Illinois, New York, Connecticut, Massachusetts, and New Jersey to name a few. And as mentioned above, some states have counties and cities with laws applying to employees working in those areas that require different protections or benefits than the state they are in.
As mentioned above, ASE can help our members keep up with all these different state’s laws both already passed and that will be enacted in the future. ASE members have access to two great online research libraries. The CCH HR AnswersNow library and the Zywave HR Services Suite library both provide state-by-state comparison employment law tools that allow you to identify the states you want employment or labor compliance information in by selecting the relevant law areas (overtime, family leave, minimum wage) you want information on. The state-by-state research comparison tools will then generate an easy-to-use list of those state laws with explanation to research compliance in any particular state as well as United States territories (Guam, Puerto Rico).
Additionally, ASE can provide employee handbook review services if you do not have the “bandwidth” to review your handbook yourself.
For more information about the online libraries or how ASE can assist with the review and updating of your handbook contact the ASE HR Hotline (248) 223-8027 to request a demo of the online libraries or more information about ASE’s employee handbook development and review services.