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Slew of new labor laws vex employers, from e-cigs to ... jail!


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Beth Ewen

Illustration by Jonathan Hankin

No sooner had I started reporting this column on the slew of new labor regulations at the state and local levels, than Exhibit A landed in my in box.

On July 16, Chicago’s City Council approved a bill requiring Chicago employers to give workers at least two weeks’ notice of their schedules and compensate them for last-minute changes. Five other cities and the state of Oregon already require so-called predictive scheduling, with more on the way.

The actions are far and wide, and in a few cases they’re head-scratchers, at least to me. Like this: Implanting microchips in employees was banned this year in Arkansas, Nevada and Montana. I didn’t know that was a thing, which is the point of this column: to inform multi-city and -state operators how to avoid breaking all the new rules.

The list goes on, according to a relatively new and enormously helpful summary each quarter from Faegre Baker Daniels law firm: Final pay protocols. Smoking and e-cigarette bans. Negligent hiring rules. Pregnancy and lactation accommodation. Emergency responder leave. Organ and bone marrow donation leave. Medical marijuana. Kin care leave. Antibullying laws.

Tareen Zafrullah, an attorney in Faegre’s Indianapolis office, said starting about a year ago he and a couple of paralegals began scouring the internet to find new developments in labor law. “We try to look at all 50 states, whatever we can find. It’s hard to find everything,” he said, most notably because there is just so much.

“I’ve been here doing employment law for 14 years. These last few years there’s been a huge uptick in state and local governments,” he said. One reason is “copycat” laws, in which one large city makes the news for regulation and others follow. Another is zeal on the part of individual lawmakers to enact rules if they believe their state, federal or local governments are dropping the ball.

Zafrullah says minimum wage is the most active issue all around the country, including a new action in Delaware where it will rise from $8.75 to $9.25 per hour in October.

Employers can no longer inquire about criminal history in Colorado, Nevada, New Mexico and North Dakota.

It’s newly against the law to ask about people’s pay history in Kansas City, Missouri, Alabama, Maine, Nebraska, Pennsylvania, Vermont and Washington. In Alabama as of August 1, employers may not pay their employees less than others of another sex or race for equal work.

What can operators do?

By now multi-state and -city operators will have a burning question to go along with their heartburn: How can they possibly comply? “One would be to get employment counsel, which could be expensive,” offers Zafrullah, perhaps in an understatement. Other ideas: Engage firms that provide HR consulting along with services like processing payroll.

Watch for webinars from law firms and HR firms, and sign up for articles from both sources. Join a trade association in your industry, which often retain employment counsel.

Band together with other franchisees in your states to share information and ask your franchisor for help on the corporate level.

For “fair workweek” laws like the Chicago bill that just passed a key committee, technology may be the answer, writes Mike Zorn, VP of workplace strategy at WorkJam. He calls digital workplace platforms like WorkJam “the best solution for employers that need to quickly achieve compliance.”

But he warns technology only goes so far. “Operations must develop policies that instruct managers to avoid withholding shifts until the last minute, provide employees advance notice of their schedules and limit schedule changes.”

Jeff Hanscom, VP for state government relations at the International Franchise Association, says the IFA’s stance is “relatively consistent” on all the laws. “We don’t necessarily advocate for specific aspects” of scheduling or wage laws. “What we do advocate for is equal treatment under any law, so franchisees aren’t categorized as big business.”

The IFA’s Franchise Action Network publishes a biweekly newsletter highlighting labor law changes, along with regular webinars, toolkits and other resources for members.

“That’s our job, especially mine, to meet with regulators and legislators across the country,” Hanscom said. “Given that, there is no single source that is better than local franchisees.” He encourages local owners to get to know their city council member or state senator or representative. “Nothing helps move the needle with these folks more than hearing from the local business owners.”

An attention-grabbing penalty

Amy Jordan Wilkes, an attorney with Burr & Forman, highlighted two more issues on the hot list for states and cities. First is paid leave, with eight states having paid family leave on the books. “This year Oregon, Maine and Nevada are new, she said. “It’s a recognition of how far behind the United States is to other developed countries as far as these policies.”

Second is sexual harassment. California began requiring sexual harassment training in 2018 only for employers with 50 or more employees. “Now, it’s employers that have five or more employees,” and mandatory training “has to be done in January 2020.” Delaware and New York also have new laws.

She recommends constant monitoring of policies and procedure. “I think we’re all guilty of falling into a rut and doing something once and thinking it’s fine, but you constantly have to review,” she said.

In case employers remain unconvinced about paying attention, consider one new law, in Minnesota, that comes with an attention-grabbing penalty. “Following the lead of other states, the 2019 Minnesota Legislature passed a somewhat watered-down ‘wage theft’ bill which adds substantial disclosure and record-keeping burdens,” writes Stacey DeKalb and Michael Glover, attorneys at the law firm Lommen Abdo. “However, woe to the employer who actually does, with ‘intent to defraud,’ steal wages from an employee.

“Depending on the amount stolen, penalties range from one year in jail (and a $3,000 fine) to 20 years in jail (and a $35,000 fine).”

Jail time. Enough said.

Beth Ewen is senior editor of Franchise Times, and writes the Continental Franchise Review® column in each issue. Send interesting legal and public policy cases to bewen@franchisetimes.com.

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