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It’s Not Just California Anymore: State and Local Laws Challenge the Multijurisdictional Employer

Did you know that employers can be sued in Michigan for height discrimination?  Or that in Maine, starting in 2021, employees can take paid time off for any reason at all?  States and cities have followed California’s lead in requiring tighter restrictions on employers and providing more rights to employees.  Is your company complying with these swiftly changing state and local restrictions?

Historically, employers viewed California as the only place with significantly more restrictive employment laws outside the federal norms. However, more and more cities and states are setting higher standards for employers and requiring strict compliance. Employers must therefore keep up with the rapidly changing regulation landscape on the state and local level.

For example, many states and cities have passed various versions of “ban the box” laws that prohibit an employer from requesting criminal history on an application.  Detroit and New Orleans ban questions at the application stage, not after a conditional offer of employment, but only for contractors doing business with the city. New Mexico allows an employer to consider an applicant’s convictions only after reviewing the application and discussing employment with the applicant (interview).  Washington state requires employers to determine that the applicant is otherwise qualified for a position, but does not require that the employer conditionally offer employment to consider arrests, convictions, or background checks. Most states with ban the box regulations do allow inquiries of criminal history after a conditional offer of employment.

Inquiries regarding pay history are also banned under 19 local ordinances and 17 state laws.  Maine, Delaware, Massachusetts, Oregon, Vermont, and Washingtonallow pay history inquiries only after a job offer has been negotiated or extended.  In other words, a company will not find out it is overpaying an individual until after the offer is extended!

And finally, states are enacting additional protected status categories for employees outside of the typical protected classes (age, race, gender, disability, sex). The following is a list of various different protected statuses provided by states:

  • Height/Weight: San Francisco (contractors); Michigan

  • Emergency Responders: Delaware/Tennessee.

  • Parenthood/Familial Status: Alaska (parenthood); Washington D.C. (family responsibilities, e.g. being subject to child support garnishments); Michigan/Minnesota/West Virginia (familial status).

  • Age: Washington D.C./New York [state]/Oregon (18+); Maryland (no minimum age); Missouri (40-69)

  • Reproductive Health Decisions: Delaware, Hawaii

  • Financial Status: Minnesota/North Dakota (status regarding being a recipient of public assistance).

  • Smoker: Kentucky

The trend for increased local and state restrictions on employer conduct is in full swing.  Other categories of state and local regulation include paid sick leave, wage deductions and pay transparency.

© 2020 Foley & Lardner LLP


About this Author

Rachel Powitzky Steely Employment Lawyer Foley Gardere Law Firm

Rachel Powitzky Steely is recognized as one of the foremost female trial lawyers in Texas specializing in employment law. She was selected as one of the top 20 female trial lawyers by Texas Lawyer Magazine and the only labor and employment attorney to receive the honor. Rachel has been recognized as a Texas “Super Lawyer” for more than ten years in the specialty of employment litigation. She was also a finalist for the Houston Business Journal's Outstanding Business Leader in Professional Services and was selected for Who's Who in Energy. She is a former student investigator for...