Employee Handbook Red Flags For Multi-State Employers
Many employers are not aware that when they draft their employee handbook there are many policies that need to be different based upon the state in which the employer is operating. This can be a real nightmare for HR. The best thing to do is make a list of all the states in which you operate. Remember that this includes states in which even just one employee may be working remotely. You would need to comply with the local laws and regulations for that state as well.
Let’s assume that you operate in 10 different states. You should prepare a checklist to mark all the policies in which you will need to check the state laws to ensure that you are in compliance. The best practice is usually to create an employee handbook that is in compliance based on federal laws. You should then create a local practices section of the handbook and in this section have local and state laws in each of the 10 states in which you operate that may be different from the main employee handbook.
What are some of the policies that could cause you problems that you should include in this checklist?
The first is of course FMLA. Many, although not all, states have their own FMLA laws that sometimes require more leave than what is required under the federal FMLA. For instance, Connecticut requires that employers provide eligible employees with 16 workweeks of leave in any 24-month period. In addition, in Connecticut, an eligible employee only has to have worked for 1000 hours in the 12-month period immediately preceding the leave rather than the 1,250 hours required by federal law. Also under the Connecticut family leave law an eligible employee can take leave to serve as an organ or bone marrow donor. New Jersey requires that employers provide 12 weeks of leave in a 24 month period but it is only for the serious health condition of a parent, child or spouse or the birth or placement for adoption or foster care of a child. There is no New Jersey FMLA for your own serious health condition. Moreover, this New Jersey family leave law applies to employers with 50 employees anywhere in the country as long as one of the employees is employed in New Jersey. In addition, to be an eligible employee under New Jersey law as we saw was the case in Connecticut, the employee need have only worked 1,000 hours in the 12 months immediately preceding the leave. Also, the definition of family member in New Jersey includes leave to care for an in-law or step-parent. New York does not have its own state family leave law. Be sure that you check your state’s laws to determine if (1) there is a state family leave law and (2) if it provides something different than does the federal FMLA.
Jury Duty Leave
Another policy that will have local implications is your jury duty leave policy. Some states such as New York require that the employee be paid $40 for the first three days of leave. Massachusetts requires that for employees that were scheduled to work for three months preceding the jury duty leave, that they be paid their regular wages for the first three days of jury duty leave.
Access to Personnel Files
Another area that is dictated by local state practice would be access to personnel records. Different states have different laws about whether employees have the right to see or copy their personnel file. You should make sure that you know the law of each of the states in which you operate and insert all relevant information into the local practices section of your employee handbook.
Vacation and Wage Deductions
Vacation and wage deductions is another big area of concern. Many times employers allow employees to borrow PTO or vacation time when they have not yet accrued such time. Then if the employee is terminated prior to accruing the time, the employer requires that the employee pay back the time and sets forth that this will be done by deducting the amount from the employee’s last pay check. This is unlawful in many states. Make sure that you check each of the state laws in the states in which you operate to find out what the laws for wage deductions are in that particular state. In addition, each state has specific laws about an employee’s final paycheck when the employee has been terminated or has voluntarily terminated their employment. It is important that you are familiar with these state laws so that you can ensure that the employee receives their final paycheck within the time limits specified by the law in your particular jurisdiction.
Short-Term Disability Benefits
In addition, some states such as New York require that employers provide short-term disability benefits. Make sure that you know the law in your state regarding whether you will need to provide your employees with short-term disability benefits.
Other State Laws
States also have a variety of other laws that employers need to be aware of. These laws can change and/or become law quickly so it is important for you to be aware of new laws in each of the states in which you, as a multi-state employer, operate. For instance, many states have laws regarding women’s rights to express breast milk in the workplace (i.e. New York recently passed this law); leave to donate blood or be a bone marrow donor and domestic violence leave laws. Another area that is being regulated by states and local municipalities is cell phone and texting laws. Be sure to keep abreast of local laws in all the areas in which you operate.
These local state laws can get employers in deep trouble. Employers should be proactive and keep abreast of all the relevant state laws in the states in which they operate. Employers should ensure that their employee handbooks set forth in a local practices section information to ensure that they are in compliance with each state’s laws.
Submitted by: Melissa Fleischer, Esq.
HR Learning Center LLC