Comparing State Employment Laws

As remote work grows, so do the compliance challenges. In this episode, Pandy highlights key state employment laws that HR teams should consider when managing out-of-state employees. Learn what to watch for and how to avoid common pitfalls in multi-state workforce management.

Transcript

Speaker: 0:20

We're back to remote workers. We're going to talk about the different laws within the different states. I thank you for watching. You're watching the Human Resource and or listening to the podcast. Are they, as the employer, bound by the laws of that particular state, or can they hold them to the employment laws of the state where the corporation is? And we've talked about this a number of ways, but I decided today, just to kind of make it, just kind of add to the depth of how important that question is, what particular state laws employers should be looking at and deliberately looking at that tend to vary considerably among different states. In fact, if you watched a couple of shows ago, Doug Oldham was here from Barnes Thornburg talking about 19 different states that have very specific laws around personnel files. And here in Ohio, you don't even have to have a personnel file. So think about how different that is from another state that requires a personnel file, but also requires, you know, all these different things around personnel files and the request to view that file. So I want you to take out a pencil and paper or make sure that you ask for this list if you have remote workers, because these topics vary from one end to the other. And it's very important that you understand just how differently you may have to treat your remote workers depending on the topic.

Speaker: 2:06

The big one that I get a lot about is whether we have to pay out PTO at the time of termination. And that is such a great question because when you talk about a state like California where PTO never goes away, you never use it or lose it. It lives with the employee, if not used, until the time of termination, versus a state like Ohio, where you don't have to pay it out if you have a policy in your handbook that says we're not going to. If there's unused PTO at the time of termination, we don't have to pay it out. We're not going to. And so that's always one of the very first questions I pose to employers is make sure you understand and let's look this up together.

Speaker: 2:54

A second one is does that particular state offer paid sick time? And a number of states have really rallied around this question. I think it's actually stemmed, if I remember correctly, with wanting to convert FMLA to a paid program. And since the federal government didn't react, a number of states stepped up and said, well, you know what, we're going to create a program. Then they even expanded into paid family leave. So you need to look into whether your remote worker is in a state that offers paid sick leave, and in some cases, in addition to paid family leave, because some of these programs are insurance policies, basically. Which means if your employee wants to elect to get into that program, that state-funded program, there's going to be deductions from payroll. You might even be taxed. Colorado is one of those states that if the employee decides to get into the state program, the employer has to contribute as well. And you need, you don't want to get behind in that. If the employee enrolls and you're not enrolling as the employer, so ask if there's paid sick time. How about paid family leave?

Speaker: 4:17

And then let's transition now over to ban the box. Ban the box is just assumed to be universal and among all states, but it's not. So you need to be just aware, not that you would change your practices. You know, some information we don't need to know in the interviewing process, but be aware of that. The one that's spreading like wildfire, though, is a ban on salary history. And if you think about it, here in Ohio, we even have municipalities or cities that have chosen to ban the question of salary history instead of the state. Since the state hasn't done it, well, Cincinnati, Toledo, they've decided to do it on their own. So does the state, where you're at? If you think about it, if you do any advertising or recruiting on Indeed or any of the big sites, they're asking you that, that they're kind of eliminating that question. They're asking you for salary ranges, which is you know part of the recruiting process, but you're not supposed to even have that question of what their past salary was on the application, the online application, or any of those details, because you don't know what state that individual is going to be applying from. So definitely before you start recruiting on using those big sites, be aware of what states have that particular law.

Speaker: 5:50

Pay transparency is the same way. I mentioned that many of the sites are asking for salary ranges. States, again, like Colorado, they require that you have the pay range available on request and in the posting. Well, a lot of states are moving that direction. So if you don't have pay ranges in place, I would highly recommend start thinking about that now. Because if your current state, the state where your corporation or your corporate offices is located in doesn't have that law, it's coming. It's soon to follow.

Speaker: 6:25

How about the last paycheck? Think about it. When individuals terminate from a company, most of you are just accustomed to printing that last paycheck with normal payroll. But believe it or not, there are states out there that require that you pay the individual all monies due at the time of separation. Now, some of them give you seven days, some of them give you till the next payroll, some of them say within 30 days. You just don't know without asking. So be aware, especially those of you who've got people in multiple states outside of your state of corporation. That one is probably going to be one of the biggest ones that varies for you.

Speaker: 7:10

Then, of course, one that's in the news all the time is marijuana. I always tell employers, be aware of the marijuana laws, whether it's recreational or medical, be aware of what those laws are there. Now, OSHA's going to stay firm. Federal law is we don't tolerate it at all. It is not acceptable. But when you're talking about discipline, you're talking about drug testing, if you don't have federal contracts, if you're not dealing with what I call the outside federal world, you still need to understand what your employees have the rights to do. So definitely look into that one.

Speaker: 7:51

Non-competes, another one that's all over the news. If for individuals who employment and labor topics, there are a multitude of states that are approaching this topic. Ohio's one of them. We're waiting to see right now if they're going to eliminate non-competes here in Ohio. But it doesn't mean you have to eliminate solicitation or the control of proprietary information. It's intent it depends. Some states are just they're all or nothing. There's some states that say no non-competes at all, which means if you have an employee in those states that you had a non-compete signed, you know, a year ago or two years or whatever, it could be null and void. And you could be depending on information or an agreement that is no longer solid. So non-competes is still a really, really good conversation.

Speaker: 8:50

Here's one that people don't necessarily talk about. And if most of your employees are exempt employees, this probably isn't one that's going to be big for you. But understand that there is no federal law for breaks and meal periods. So if you've got non-exempt employees, you need to be aware of what states those are those individuals are working in because those laws vary by state. The only real break law is under the Fair Labor Standard Act, requiring companies to pay up to 20 minutes of a break. But beyond that, they don't, federal law, wage an hour, they don't require that you give somebody an actual meal. They don't require that you give three or four of those 20-minute breaks. So if you have non-exempt employees that are working remotely in other states, be aware of what those particular laws might be for breaks and meals.

Speaker: 9:46

Here's one that it goes back to payroll. I probably should have included this earlier in the conversation, but rounding of time worked. And again, this is talking about the non-exempt employee and how payroll is processed. But there are very specific laws per state as to how you can legally pay someone by rounding up or falling back. Again, your payroll company, if you're working with an a big commercial company, they will help you with this. But some of them leave it up to you in terms of programming that. And if you're working with a CPA who's not aware of state law, you want to make sure that you get that taken care of because wage theft laws are everywhere, and you definitely do not want to make any errors in the payroll.

Speaker: 10:39

I'm adding this one only because a question came up here the other day about workers' comp. And it was in North Carolina, and the individual got hold of me and said, "Well, there's a workers' comp claim, but we're not going to file it. We're just gonna sit on it. We want to make sure , you know, it's one we can didn't require much medical assistance or attention. My question to her was, "Well, what's the time frame on your policy?" And she said, "I don't think I understand." I said, "each state actually has a requirement as to when that reporting should be." Some states, actually, I'm not kidding. There's a state out there that requires that a workers' comp claim be reported within five days. There's others that say, oh, no, you can wait a year to report it. But the the real concern is if you're not aware of it, number one, you may not be getting the information on the proper form. So if you're an Ohio company, you can't file a workers' comp claim that occurred in North Dakota on a first report of injury form here in Ohio, unless they're actually covered by Ohio. And that's a whole different set of rules. But if you've got a claim in North Carolina on a plan for North Dakota, I'm sorry, North Dakota, those states have their own requirements. So you really do need to be aware of the documentation required and the time frame for reporting. When does that need to be recorded?

Speaker: 12:26

Here's one that came up through the pandemic, and it hasn't really changed much. So I still think it's very, relevant to be aware of, but how about reimbursements? When the pandemic occurred and we ended up with remote workers, and it was just out of necessity, companies instantly and automatically bought the equipment necessary for their employees to be able to stay productive in their home offices. And they instinctly said, "look, I'm aware we're not using the paper here in our offices, so we'll just ship it out to you, or we're not using, you know, this printer, we're going to ship it out to you." But now that the pandemic's over, believe it or not, the states, many of the states,, if not all of them, still have very specific requirements on the supplies necessary to do a job that a remote worker should expect the employer to pay for. So be very careful. If you're hiring somebody that you've never met, but they're going to be a W-2 remote worker, and they're saying, "okay, well, my computer, you know, when will I get my computer?" Because you may very well be required to supply everything. And I've got some companies that literally will call the remote workers on a regular basis and ask for a supply list so that they're staying and they've got the records of all that versus having the employee purchase it themselves and then just put in a reimbursement for it.,

Speaker: 14:04

I know it's not something we automatically think about, but it it is important if you're going to try to stay as compliant as possible. We talked a little bit about personnel files, and again, Doug Oldham did a wonderful podcast here a couple weeks ago. So personnel files are varying in terms of how we approach them and not necessarily how we maintain the information, but what we can make available, excuse me, who can ask for copies, when we give them copies, all of that. Doug does a wonderful job breaking some of that down for you.

Speaker: 14:41

So if you've got remote workers, figure out what that state's looking for. How about harassment training? This used to be so big. And at one point here a few years ago, I honestly thought that we were going to end up seeing harassment training to be a requirement in every state because of the Me Too movement and all that we were seeing in the concerns. But it's been just to me, it's been amazing that we haven't. We still have a few states, New York, Illinois, California, they do require it. And they have different time periods that they require it. But it it for many of the states, like any of the states under the Sixth Circuit, which is where Ohio, Indiana, Kentucky, it's preferred. Now I'm not saying that you shouldn't be doing it. I'm just saying that you need to be aware that if you've got individuals in states that require it on an annual basis, you need to make sure that that gets done. You need to be looking at the requirements of that state because very truthfully, in New York and Illinois, I use their state programs with those employees. I don't try to create something of my own. I take exactly what the state has provided and I send that out to those employees or or my clients do. So harassment training is very important from an accountability standpoint.

Speaker: 16:17

And then the last one I'll give you here at the very end is e-verify. How can we forget about e-verify? The I-9 is required for everyone in every state, but e-verify does vary. So I would definitely try to keep up with that because Tennessee, Florida, there's a number of states now that are requiring e-Verify. And it doesn't mean that you have to do it for every state, but make sure that if you're in a state and you're hiring somebody in one of these states that require it, that you're doing it and you're not skipping a beat on it. Okay, I know that was a lot of information. And maybe some of you don't have remote workers, but for those of you who do or who may be considering a remote worker, those lumps are coming away. And we might be even having to add additional. Some big missing.