by Many employers that have been pushed to create work-from-home opportunities for employees who would otherwise work at company offices, shops or other group workplaces have found that work-from-home arrangements can expand the company’s pool of job candidates. States where company group workplaces are located are sometimes referred to as the employer’s operational footprint. Regional employers have broadened their recruiting areas from areas within commuting distance to group workplaces to include states adjacent to their operational footprint. Some employers are now open to considering applicants who want to work in states hundreds of miles from the footprint. By allowing these recruits to work from their home state, the company may get strong talent who were previously not open to relocating to work for the organization. There can be a lot of value to the organization from tapping out-of-footprint talent, but compliance challenges must be considered. The employer is familiar with employer obligations set out by the states where their operational footprint is located, but may be unfamiliar with the requirements of other states.
States have widely varying requirements regarding minimum wage, breaks, leaves, benefits, and other employer obligations. Employers should research the state employment laws of every state where they have employees. The state’s government webpage will include basic information about employer obligations and is a good place to start research. Some states provide very general information about requirements. Other states, such as Wyoming, provide detailed answers to common employer questions about things like payment of sales commissions, leave provisions, and other issues.(http://wyomingworkforce.org/workers/labor/faq/) Often the state webpage lists additional resources for the employer to use in interpreting the requirements.
Do not assume that the state law will exclude situations where you have ‘only one employee.’ While some states limit the application of some employment laws to employers with multiple employees, some provisions may apply where the employer has only one employee. Illinois is an example of a state that has recently enacted employment laws setting requirements for mandatory training and reporting triggered when the employer has only one employee. (https://www2.illinois.gov/dhr/Pages/default.aspx)
A state employment law may be similar to laws within the company’s Upper Midwest operational footprint but have compliance details that differ. Like Minnesota, Colorado has a ‘ban the box’ law limiting inquiries about criminal history during the recruiting process but with differences in the permissible timing for lawful questions.
Colorado is also a good example of a state with employer obligations significantly different from those found in Minnesota, the Dakotas, Iowa, and other Upper Midwest states. Colorado employer obligations not generally required of Upper Midwest employers include required information on job postings, limitations on inquiries about past wages, and mandatory paid sick leave:
- The state’s Equal Pay for Equal Work (EPEW) law requires all private employers employing at least one person in Colorado to disclose in each job posting published or posted in Colorado the hourly or salary compensation (or a range of compensation) to be offered to the hired applicant.
- The EPEW also prohibits employers from asking an applicant about their wage history or relying on an applicant’s wage rate history to determine a wage rate.
- The Colorado Healthy Families and Workplaces Act (HFWA) requires Colorado employers to provide two types of paid sick leave to their employees: public health emergency (PHE) leave and accrued leave. Leave must be paid for time on leave and at the same pay rate the employee earns during time worked. Leave can’t be counted against employees as absences that may lead to firing or other adverse action.
For more information on Colorado employment laws, see https://cdle.colorado.gov/dlss.
States like California and New York have national reputations for complex employment laws and regulations. Employment law blogs can alert employers to particular issues in these states. Examples of some online resources include:
California: The Proskauer law firm provides a blog with national and state law updates. Particularly useful is a monthly summary of California employment law cases and laws: https://calemploymentlawupdate.proskauer.com
New York: Jaspan Schlesinger LLP is one of several New York law firms that provide regular online updates of state employment law requirements: https://www.nylaborandemploymentlaw.com
To assure they are meeting state law obligations, Upper Midwest employers with employees in these states may want to consult legal counsel who understands the employment laws in these states and how they may apply to the specific employer.
