Employment Law Landmines for the Multistate Employer

As more companies grow and expand beyond their startup location, the potential for employment law landmines increases exponentially. Many companies desire the ease and uniformity of one-size-fits-all policies and procedures, especially as the company grows. But companies operating in multiple states must take care that their policies and procedures comport with not just federal employment laws, but also state and even local employment laws for all of the jurisdictions in which they operate. Even documents as standard as an employment application may need to be modified based upon state or local law. Thus, companies need to constantly reassess their policies and procedures for compliance with a myriad of applicable laws.

Here are just some of the complex employment law landmines faced by unwary companies:

Employment Applications

Gone are the days when companies could use just one standard employment application for all locations. More and more states, and even some municipalities, are beginning to legislate what information an employer may lawfully seek or require from an applicant on an employment application. For example, Massachusetts passed a law in 2010 prohibiting employers from inquiring about an applicant’s criminal history on a written employment application or seeking disclosure of such information prior to the first interview, with limited exceptions. This means that employers who use a standard check-box-type question regarding prior criminal convictions cannot use that question on an application given to a Massachusetts applicant, absent a disclaimer. The states of Hawaii, Rhode Island and Minnesota, and the cities of Philadelphia, Newark, N.J., Buffalo, N.Y. and Seattle have passed similar “Ban the Box” laws. Several other states and cities have pending Ban the Box legislation.

Other states prohibit employers from seeking information about an applicant’s prior arrests, expunged records and/or credit history but do not specifically ban questions related to prior criminal convictions.

At least two states—Maryland and Massachusetts—require polygraph-related disclosures on employment applications. Applicants must be informed that they may not be required to submit to a polygraph test as a condition to employment.

Offer Letters