Four Employment Policy Pitfalls for Multi-Jurisdiction Businesses to Avoid

By: Nanette Turner Kalcik

In today’s society, where businesses are increasingly operated remotely and employees are spread across the country, employers need to be aware that laws governing their employment-related issues can vary greatly from state to state. Employers operating in multiple jurisdictions should be careful of implementing broad or generalized policies, and should know when to enlist the help of a professional to ensure compliance with applicable federal, state, and local laws.

While business owners may not be able to stay up-to-date on every new law in their jurisdiction, identifying potential issues early can save a lot of hassle (and money) in the long run. Here are four employment policy pitfalls to avoid:

  1. Gone are the days when an employer could control an employee’s use of social media at all times. Employers need to update social media policies to reflect these changes. While employers can still ban the use of social media while at work, they may be limited in prohibiting social media posts regarding protected, concerted activities that relate to issues such as pay, benefits, and working conditions.
     
  2. For the last seven years, states have gradually legalized marijuana use for purposes varying from medical treatment to recreational use. In some states, marijuana users may even be explicitly protected against discrimination by employers. For example, some states protect medical marijuana card holders from being discriminated against and obligate employers to make reasonable accommodations, while other states do not provide any protection. Some states have an exception for the reasonable accommodation requirement when the accommodation would violate federal law. Most states still allow employers to discipline employees for possession or for being under the influence while on company property or during work hours. It is imperative that employers be knowledgeable about the states that govern their employees.
     
  3. Off-limits interview topics are an ever-changing arena, with recent changes regarding the protection of salary history and marital and familial status. Thirteen states now have laws that provide protections for interviewees from questions regarding salary history. In addition to laws varying by state, some municipalities are enacting local ordinances banning these questions as well. To add to the complications, states are divided between banning inquiries regarding marital status and familial status. States have opted to ban both topics, ban one or the other, or do not ban either.
     
  4. On October 8, 2019, the Supreme Court heard arguments on whether sexual orientation and gender identification are protected by Title VII of the Civil Rights Act. While a ruling in favor of protection will be binding nationwide, this ruling will especially effect employers operating in the 26 states which do not currently have laws recognizing protection from sexual orientation or gender-identity discrimination.

With the ever-changing landscape of employment law, sometimes the most important thing to know as an employer is when to call your lawyer.

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