State and Local: Patchwork of State and Local Measures to Continue to Expand

August 29, 2018

Today’s laboratories of democracy will affect the rest of the country tomorrow as state legislatures are not sitting still, further expanding the patchwork quilt of state laws in paid leave and other areas, creating confusion for businesses.

Harassment and discrimination legislation are among the most popular in state capitals and will continue to figure prominently.

  • New York City and the Empire state passed legislation mandating sexual harassment training for employees, and a new poster, which needs to be displayed next week, outlines workers’ rights and reporting opportunities.

  • South Carolina’s new Pregnancy Accommodations Act will require employers, starting September 14, to notify employees of their right to be free from discrimination on the basis of pregnancy, childbirth or related medical conditions.

  • A new California law makes communications between an employer and an employee regarding harassment charges privileged and not subject to defamation claims.

  • California also moved to make any contract or settlement agreement void and unenforceable if it waives a party’s right to testify in an administrative, legislative, or judicial proceeding about sexual harassment.  Another proposal would prohibit nondisclosure clauses related to harassment claims.  Both bills await Gov. Jerry Brown's (D) signature.

Mandated paid leave continues to be a popular issue for state lawmakers.

  • Policy maze: Michigan; Cook County, Illinois; San Antonio, Texas; Massachusetts; Pennsylvania; and other states and locales have seen legislative movement on differing paid leave requirements.  Today, 10 states and 33 localities have such laws on the books.

  • State preemption: The state of New Jersey realized it didn’t want its businesses to have to comply with 13 paid sick leave laws at the municipal level and passed a state-wide paid sick leave law preempting local ordinances.  Preemption will continue to be a popular mechanism at the state level as local governments pass economically burdensome regulations.

Outlook: State policymakers are proposing ideas that are being socialized, critiqued, amended, and improved.  Local legislators are organizing supporters and honing arguments.  When Congress gets around to debating these issues, the states will have produced a library of fully vetted proposals from which to select.

  • Most state legislatures adjourned the year, but some, such as California, will be back at work soon.

  • HR Policy will continue to follow developments on issues such as those mentioned above, as well as equal pay, predictive scheduling, and health care.

  • The ultimate solution is federal preemption along the lines of Rep. Mimi Walters’ bill establishing a voluntary federal paid leave standard which would provide a safe harbor from compliance with the myriad prescriptions of state and local laws.