Multi-State Employment Law Problems

The DC metro region has many companies that are based in one state and also have employees who work in other states. When I have conversations with clients about their concerns, compliance almost always comes up. 

This is understandable since there isn’t one set of employment laws that apply the same rules across the United States because that would just make things too simple. As a result of the crowded employment law landscape, it becomes very important to figure out which set of regulations apply in a given situation.

If you’re running a business or HR department, it’s likely that you have a thousand other pressing concerns, and never seem to be able to devote as much time to compliance as you would like. To make the review easier when you do have time to address compliance, the following information provides the steps and thought processes that I follow with clients when discussing employment laws and related compliance.

When reviewing the applicability of laws, it’s useful to start with federal employment laws since they generally apply across the board. Put another way, regardless of what state law applies in a given situation, federal employment law is going to apply across all states if the employer meets the applicability thresholds set at the federal level. These federal laws act as a minimum baseline. As a general rule of thumb when comparing state and federal employment law, the law that provides the most protection or benefits to the covered employee is the law that should be followed.

Minimum Wage

The following minimum wage law comparison provides an example of this concept:

• Scenario 1: Georgia has a minimum wage of $5.15 which is below the federal minimum of $7.25. Since the state can’t enforce a minimum that is below the baseline set by federal law for covered employees, the federal minimum is used.
• Scenario 2: The converse of this situation is seen when you compare the DC minimum wage of $10.50 to the federal minimum of $7.25. In this case, the DC minimum wage would apply for covered individuals since it goes above and beyond the baseline set by federal law.

Steps to Review Applicability

Before we go over an example, the below steps outline a process you can take in every situation to ensure you’re in compliance:

• Cast a wide net. Begin by researching what laws may apply in the given situation. For the purpose of this review, we’re only focusing on the FMLA (Family Medical Leave Act), but that is not meant to imply that only one set of laws may apply in a given situation.
• Review the laws themselves, and/or seek reputable interpretation of laws. It’s great to look at the laws themselves, but that can be onerous. In addition, laws oftentimes are written generally enough to leave additional questions for practitioners when it comes time to actually apply the law. Terms in employment laws like ‘reasonable’ will result in a lot of head-scratching; if adherence to the law requires that an employer act ‘reasonably’ in a specific situation, knowing what ‘reasonable’ means becomes critical. The interpretation of these terms will ultimately be decided by courts, and consulting an HR professional or employment attorney (depending on the nature of the question) for clarification can help reduce the chance of misinterpreting what a law requires.
• Determine the definition of covered employers and employees for each law. For multi-state employers, that means reviewing the laws in each state as well as at the federal level. There are laws where an employer can be covered, but a specific employee is not. The following example regarding the DC FMLA showcases a law that is an example of how a ‘state’ law can have different eligibility thresholds and different requirements as set by the baseline federal law (the Family and Medical Leave Act of 1993). Example Scenario: The employer in question has their headquarters in Richmond, Virginia with 100 employees based there, and also has over 30 employees in DC. One of those 30+ employees in DC is experiencing a qualifying situation under DC FMLA, although whether they’re covered by the DC FMLA needs to be determined.
• Determine Employer Coverage: Since we’ve determined that we’re only looking at FMLA in this example, we can skip straight to reviewing the applicability of those specific laws. Per the DOL, the federal FMLA applies to a ‘private-sector employer, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year…’. Virginia follows the federal FMLA and does not have a separate state law. DC has the DC FMLA on the books, and it defines covered employers, stating that: ‘this chapter shall apply to all employers that employ twenty (20) or more persons in the District of Columbia…’; and, DC and federal FMLA have additional language regarding calculating employee counts, but for the purpose of this example we won’t dwell on that detail, and will make a determination that the employer is covered by the federal FMLA and the DC FMLA.
• Determine Employee Coverage: Since both laws apply to the employer, we now need to determine whether both laws apply to the employee in question. Section 4-1603 of the DC FMLA states that: ‘If the employer employs at least twenty (20) employees in the District, its eligible employees shall include those employees who work within the District.’ There is additional language regarding how many hours the employee has to have worked to be eligible, but for the purpose of this we’ll again forgo that level of detail. There are multiple requirements that an employee must satisfy to be eligible for coverage under the FMLA, even if their employer is covered. In this case, the employee is not covered under the federal FMLA because they don’t, ‘work at a location where the employer has at least 50 employees within 75 miles’.

Application of DC FMLA Review:

In this scenario, the employee is covered under the DC FMLA, but not the federal FMLA. As employee counts change, eligibility for future requests should continue to be reviewed. In an anticlimactic twist, determining the applicability of employment laws requires diligence and a review of the laws themselves. Employers who do their homework and seek clarification when needed position themselves to avoid unnecessary liability as a result of non-compliance.

*This article is not intended as legal advice.