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Employment Law Trends and the Flexible Workforce


Employment laws can differ widely at different governmental levels with some progressive areas like California and New York City often setting trends for the rest of the country. Employers must follow the labor laws of each individual state and municipality where they have people performing work. It has been said that US states are “laboratories of democracy,” and if a particular area has enough influence, state and local laws may eventually become federal law. For this reason it is important to keep up with these trends even if you are not operating in a state with a new and more restrictive law.

There is a common misconception that employers of contingent workers are exempt from following certain labor laws. Often, you must follow the same labor laws for your contingent workers as you do for your permanent labor force. While there are many developing trends in labor law which impact flexible workers, this article will focus on a few significant ones.

Paid Sick Leave

In the past couple of years, many states and municipalities have implemented paid sick leave policies. The intent behind these laws is to ensure that sick employees are able to stay home from work to become well and not spread illness in the workplace. Often, employees will attend work sick because they cannot afford to miss a day of work. Paid sick leave laws aim to allow employees to stay home from work without a deficiency in pay.

In 2014, California implemented the Healthy Workplaces, Healthy Families Act , which gives employees 1 hour of paid sick leave for every 30 hours worked with up to 24 hours or 3 days per year. The law applies to all workers employed in the state of California.

In September, President Obama issued an Executive Order issuing paid sick leave mandates for federal contractor workers. While this does not apply to the private sector, it does show the federal government is moving in the direction of eventually establishing federal requirements for paid sick leave for all US employees. It is important to keep up-to-date with all new paid sick leave laws for the states and cities in which you operate.

Since there is a lack of a federal regulation in the private sector, some large companies have implemented paid sick leave policies upon their contingent workforce suppliers. One prominent example is Microsoft, which announced a policy earlier this year requiring their staffing vendors to provide a minimum of 15 days paid vacation and sick leave. This might lead to a greater trend of corporations taking initiative on behalf of their vendors. Paid sick leave policies are now being considered for contingent workforce programs, and not just full time permanent employees.

Ban the Box

A new movement in states and cities is laws regulating the question of criminal history on employment applications. “Ban the Box” laws seek to ease the hiring process for ex-offenders and the end-goal is to reduce the amount of discrimination in hiring practices. Additionally, these laws aim to help applicants with criminal histories obtain gainful employment due to the difficulties associated with employers refusing to hire ex-offenders. Many “Ban the Box” laws do allow prior conviction questions to be asked at a later stage in the application process.

Recently, New York City enacted The Fair Chance Act, which went into effect October 27, 2015. New York City’s “Ban the Box” law prohibits job application and interview questions that ask about an applicant’s criminal history. The employer may only perform a background check after giving the applicant a conditional job offer. Additionally, the law prohibits any job postings from stating that a background check will be conducted. This arrangement allows for an applicant to advance in the hiring process, and is intended to create a more fair environment for ex-offenders to gain employment. With more and more cities and states updating their labor laws to include “Ban the Box” regulations, it is prudent to stay informed of emerging changes to labor law.

One best practice to avoiding any issues is to consider removing criminal history questions from job applications and interviews. The most appropriate time to address criminal history with an applicant is after a conditional job offer has been made to an applicant, and after the background check has been returned. If an issue comes up on a background check, then the applicant’s criminal history may be reviewed for potential adverse action. Synergy developed an adverse action process where each hit on a background check is analyzed on a case-by-case basis, and helps remove discriminatory hiring practices.

Credit History Checks

Similar to “Ban the Box” laws, some cities and states have implemented restrictions on credit history checks on applicants or current employees. Some employers use credit checks when making hiring or promotion decisions. The intention of these types of laws is to prevent employment discrimination against low and middle-income households.

In 2013, the state of Colorado instituted the “Employment Opportunity Act”, which limits the use of credit checks on applicants and employees to only those whose credit information is “substantially related” to the job. It is important to note that there are several exemptions to these types of laws depending on the type of work the employee is performing and security level. Many other cities and states have similar laws prohibiting the use of credit checks for prospective employees.

Within the context of a contingent workforce program, it may be a good idea to remove any blanket credit check policy. Instead, you may want to consider reviewing the necessity of the credit check based on the type of work the employee will be performing.

Best Practices

Employment laws can vary widely on the federal, state, and local levels. It is an obvious, but very difficult to implement, best practice to continually monitor your contingent workforce programs to make sure you’re keeping up with recent employment law changes and trends.

If your company employs workers in more than one state, it may become difficult to keep up with all the employment law changes. Sometimes, these state and local laws evolve into federal regulations and become applicable to your entire workforce. An easy solution is to work with an independent contractor compliance and engagement specialist like Synergy Services. For example, as part of our Employer of Record professional payrolling services for workers in all 50 US states, we must remain current with employment laws at all federal, state, and local governmental levels. Synergy ensures compliance with all employment laws and mitigates risk for your contingent workforce.



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