Multi-State HR Compliance for New Remote Workers

To get the most out of remote hiring, companies should look at potential employees who live and work in a different state.  

However, multi-state employers must keep abreast of complex and evolving Human Resource (HR) compliance rules and regulations. The required research often burdens small HR departments with minimal staff or staff without broad knowledge and experience.   

At the same time, non-compliance can result in high-priced fines, penalties, and adverse court judgments.  

The following describes some core multi-state HR compliance issues.  

Multi-state Employment Law Compliance

If you want to hire across state lines, you must understand the variations that occur among state and local laws. You must also pay attention to conflicts between federal and state laws. 

Pre-Hiring Compliance 

Whether a work application is online or in traditional paper form, the document becomes legally binding after the prospective employee signs and dates the form. It is the permanent record that starts the hiring process. 

Differences exist between state and federal requirements regarding the questions employers may ask on the pre-interview application form.  

• For example, several states passed “Ban-the-Box” laws. These laws forbid employers from asking about a candidate’s arrest record on the employment application form. Ban-the-Box laws are meant to consider employment qualifications without the stain an arrest record often engenders. Fifteen states and the District of Columbia mandate the removal of conviction records from the pre-interview application process.  
• Some states have adopted Service Letter Laws. Such laws require employers to provide former employees with a letter describing their work history, pay rates, and termination reasons. The information permitted under these laws varies broadly from state to state, so multi-state employers must research each state’s rules that affect their employees. 
• Congress passed the Fair Labor Standards Act (FLSA) to mandate employers retain certain employee records for a specified period.  You can find these rules on the Department of Labor’s FLSA Fact Sheet.  
• States often have record retention rules that cover more areas than federal law. These additional areas may include racial and gender classifications under equal pay laws, family and medical leave laws, or other employment law-related records.  

In addition, federal law requires employers to report basic information on new hires and rehires within 20 days of employment in the state where they work.  For multi-state employers who so choose, the Department of Health and Human Services (HHS) permits an employer to register with HHS and then select one state where the employer will report all new hires and rehires.  

Wage and Hour Compliance 

Both federal law and state laws impose minimum wage laws, overtime, and break requirements. The federal minimum wage provision in 2022 stands at $7.25 per hour. States often have higher minimum wage rates than the federal rule. California has the highest in the nation with $15 per hour for employers with 26 or more employees. The rate is $14 per hour for employers with fewer than 26 employees.  

Some states have minimum wage rates per county or per city. Five states have no state minimum wage laws. In 2022, 25 states expect to increase their minimum wage rates. For employers with multi-state employees, state rules on minimum wage complicate matters. 

Overtime 

Under federal law, employers must pay overtime when non-exempt employees work more than 40 hours in a single work week. When it comes to overtime, 19 states have set their own rules. California and others require overtime when employees work more than 8 hours a day. California requires double time when an employee works more than 12 hours daily. On the other hand, Oregon requires overtime for the manufacturing industry when an employee works more than 10 hours a day. 

Breaks 

Another area of dissimilarity between federal and state laws is break requirements. Federal law has no requirement that employers provide breaks for meals or rest. 

If, however, employers choose to provide meal or rest breaks, the FLSA states when employers must pay employees for those periods of 30 minutes or more. FLSA requires employers with more than 50 employees to provide hourly employees with breaks for nursing mothers to express milk in a clean, private area up to one year after birth. Many states have adopted break rules for meals, rest, and how those are compensated. Many states also require far greater protections for nursing mothers. 

Paid Sick Leave  

Federal employment law does not require employers to provide paid sick leave. Several states and local jurisdictions, however, require employers to provide paid sick time, and they set their own rules, such as: 

• Eligibility rules, 
• Whether employees must complete waiting periods 
• How sick leave accrues, and 
• The reasons employees can take sick leave. 

In Maryland, for example, employees may use paid sick time for:  

• Domestic abuse, 
• Sexual assault, or 
• Stalking of either the employee or a family member. 

In California, certain cities have their own paid sick leave laws that are more favorable than the state’s laws. Some states have mandatory leave laws that cover, such as: 

• Jury duty, 
• Bereavement, 
• Voting, Organ donation, and 
• Attending children’s school activities.  

States determine whether the sick leave is only for the employee or if employees may use leave to care for a sick family member. A multi-state employer must contend with complex paid sick leave and mandatory leave for each state in which they have employees on the payroll. 

Mandatory Training  

Many jobs require training for a worker to attain a certain competence level. Several states also require special training, such as Equal Employment Opportunity Commission (EEOC), nondiscrimination, or sexual harassment prevention training. For instance, New York, Connecticut, California, Delaware, and Maine have sexual harassment prevention training for all employees. 

Multi-state employers face the hurdle of researching the mandatory training laws in each state where they have employees. Then, they must create the appropriate training module. 

Pay Equity  

Congress passed the Equal Pay Act to mandate equal pay for equal work. Several states go beyond those protections to require equal pay for “comparable work or “substantially similar” work, including:  

• California, 
• New York, 
• New Jersey, 
• Maryland, 
• Massachusetts, 
• Oregon, and 
• Washington. 

Employers may raise defenses against pay equity rules for the following reasons: 

• Seniority 
• Experience 
• Performance 
• Location

To use these defenses, employers must also accurately describe job classifications to allow them to differentiate between the work that various employees do and the pay that applies to those jobs. 

Some states also forbid employers to ask applicants about their prior salary history as part of the application process. Multi-state employers must decide whether to apply this rule to all employees or only those from states that use this rule. The states who adopted this practice include: 

• Connecticut, 
• California,  
• Vermont, 
• Delaware,  
• Maine,  
• Hawaii, 
• Massachusetts, and 
• Oregon. 

Anti-discrimination Law  

Where there is a conflict between federal and state laws, federal law is the supreme law of the land. For example, Title VII of the Civil Rights Act prohibits discrimination based on age (40 and above), genetic information, disability, national origin, color, religion, pregnancy, or sex. Some states and local jurisdictions have added prohibitions to the list,  an acceptable practice as long as it does not take away federal rights. California, for example, includes gender identity, sexual orientation, and marital status in its nondiscrimination compliance list. Some states and local jurisdictions may apply more protective rules to smaller employers than federal law. 

Workers’ Compensation  

Workers’ Compensation (WC) laws eliminate the need to litigate every job injury. WC also protects employees from financial distress caused by job loss and medical expenses. In the U.S., every state (except Texas) requires employers to buy WC coverage. 

Four states (Ohio, North Dakota, Washington, and Wyoming) require employers to use the state’s WC fund. Each state sets its own WC rules concerning various industries, the size of employers’ businesses, and payroll. 

The Department of Labor oversees the Federal Employees Compensation Act (FECA) for civilian employees of the federal government in the executive, judicial, and legislative branches. FECA covers injuries from employment and occupational diseases, such as black lung disease or asbestosis. FECA covers wage replacement, medical and job rehabilitation expenses, and survivor benefits.  

What Happens When Federal and State Laws Conflict? 

When federal laws conflict with state laws, federal laws usually supersede state and local laws. States and municipalities cannot pass laws that curtail the worker rights granted by federal law. 

However, state laws supersede federal laws when it comes to employment labor laws. The Department of Labor assumes that employers should follow the laws that provide workers with the highest form of protection. For example, states can pass minimum wage laws that provide a higher hourly rate than the federal government’s $7.25 per hour. 

What Happens When State Laws Conflict? 

Two solutions present themselves when it comes to multi-state compliance. Employers sometimes adopt the “umbrella approach” which means the employers decide to apply to all employees the state law that is most favorable to employees. 

Alternatively, employers may decide to apply the various HR state-required policies to each individual jurisdiction. The downside is that some employees will remain subject to more favorable policies than other employees. Workers and prospective candidates may resent what they perceive as an unfair practice.  

Help with Multi-State Employer Compliance  

Remote work appeals to workers because they can work from anywhere.  

However, multi-state remote workers cause difficulties in payroll and employee benefits administration.  

That’s one of the reasons that multi-state employers love professional employer organizations (PEOs).  

PEOs partner with employers to provide full services in HR administration, payroll, and benefits.  

When it comes to multi-state hiring, PEOs provide a significant advantage. For example, employers do not need to register in more than one state since best-in-class PEOs are already registered in all 50 states. In addition, PEOs: 

• Handle all of the reporting requirements 
• Proactively update you on new compliance requirements 
• Processes multi-state payroll; 
• Provide national health benefits 
• Enable pay-as-you-go workers’ compensation deposits; and 
• Offer access to expert staff and resources to answer questions on multiple state compliance requirements. 

Unlike other HR outsourcing solutions, PEOs can file your payroll taxes for you and provide health insurance at a lower cost than you could get on your own.