State Legislatures Push Progressive Workplace Policy Changes

State legislatures across the U.S. enacted workplace legislation encompassing paid leave, pay transparency, AI, non-competes, and union organizing. State governments directed considerable attention toward safeguarding employees, leading to the establishment of new and disparate compliance obligations for employers. 

Paid Leave: More states are enacting paid family and medical leave (PFML) laws with expansive qualifying reasons for such leave, including to care for non-family members. The Bipartisan Congressional Working Group on Paid Family Leave is expected to release a legislative framework for a federal program by early 2024, although a federal solution to PFML remains elusive. States with PFML leave laws: CO, CT, DE, ME, MA, MD, MN, NJ, NY, OR, RI, WA, DC.

Pay Transparency:  Illinois and Hawaii joined the growing number of states to enact pay transparency laws which require employers to disclose pay ranges in job postings. Several other states are considering similar legislation in 2024. States with pay transparency laws: CA, CO, CT, HI, IL, MD, NY, NV, RI, WA.

Artificial Intelligence: Some legislatures, concerned that AI tools could be applied in a discriminatory fashion, have introduced legislation that would make it unlawful to use an AI tool in a manner that is intentionally discriminatory or could result in discriminatory impact. States with AI laws: NY, MD, IL, DC.

Non-Compete Agreements: Several states have enacted legislation that would ban employers from entering into or attempting to enforce non-compete agreements, which are void under state law, regardless of where and when the contract was signed.

While the New York state legislature passed a non-compete ban earlier this year, Governor Hochul has yet to sign the legislation into law, stating she would prefer the legislation include a pay floor of $250,000, below which non-competes would not be allowed. Regarding the FTC proposed rule on non-competes, Gov. Hochul stated, “I would rather see, overall, a national policy where we don’t have states playing off of each other.” States with non-compete bans: CA, OK, ND, MN, NY (awaiting the Governor’s signature)

Union Organizing and Captive Audience Meetings: Several states passed legislation prohibiting employers from holding mandatory meetings addressing union organizing. A lawsuit against Connecticut’s captive audience meeting ban, alleging that it is preempted by federal labor law, is currently pending. Similar legal challenges may be levied against the other states. States with captive audience meeting bans: CT, ME, MN, NY, OR

Outlook:  Without meaningful federal workplace legislation, employers can expect state legislatures to continue to fill the void as they reconvene in early 2024.