The Trump administration is expected to scale back to some extent the workplace regulatory burdens imposed on the business community, though the pace of change remains uncertain.

At the same time, the recent trend in state and local governments appears to be in the opposite direction, increasing the number of employee-friendly laws and rules. This is especially true in jurisdictions where many trade associations are based, such as Washington, DC, New York, Chicago, and California.

At last count, more than 400 labor- and employment-related measures were under consideration in state and local governments across the nation. Several of the issues addressed in these bills could have a significant impact on association employers.

Background Checks

"Ban-the-box" bills, which restrict the use of applicants' criminal history in making employment decisions, continue to increase in number. Many state and local governments have already passed laws that preclude employers from asking about a candidate's convictions on an initial employment application, but some states go further. For example, the District of Columbia bans any criminal background check until the employer has determined that the applicant is otherwise qualified for the job. The District also has passed a law regulating the use of credit checks in employment decisions, and many states are following suit.

Equal Pay

Last year witnessed a dramatic increase in the number of "equal pay" laws in the states, led by aggressive new statutes in California and New York. The new laws require employers to justify pay differences between men and women, increase the transparency of pay decisions, and retain records from which such decisions can be scrutinized in litigation.

The trend is continuing in 2017. In early March, Puerto Rico adopted a comprehensive equal pay act, prohibiting pay discrimination based on sex as well as certain inquiries and practices during the recruitment process.

At last count, more than 400 labor- and employment-related measures were under consideration in state and local governments across the nation.

Similar proposals in other jurisdictions seek to ensure pay equity in various ways. A common approach is legislation that prevents an employer from asking applicants about their salary history. An Oregon bill includes such a provision, as do measures pending in Illinois, Maryland, and New York. Other bills prohibit employers from preventing workers from discussing their salaries. In all, about 10 states are considering some sort of equal pay bill this year.

"Fair" Scheduling

In recent years, several cities have passed "secure," "fair," or "predictive" scheduling ordinances. These laws require employers to provide their employees with advance notice of their schedules and, in some instances, to compensate them for last-minute changes.

Seattle enacted a secure scheduling ordinance last year and recently issued its proposed rules to implement the law, which becomes effective on July 1, 2017. As is typical of such laws, Seattle's new ordinance requires employers to give new hires a good-faith estimate of their work hours and tell employees their schedules 14 days in advance. San Francisco passed a similar provision in 2015.

In March, a New York City Council committee held hearings on a series of predictive scheduling bills. The six bills under consideration could significantly affect the scheduling of employees, particularly those in the fast-food industry, by requiring 14-day advance notice and by forcing employers to offer available shifts to current employees at a location before hiring more workers.

Leave Laws

Approximately 45 bills are currently pending in state legislatures that would add new protections for employee leave time. Some of these proposals address protected time off for specific purposes or specific individuals, such as for bone marrow or blood donation, for military service, or for victims of domestic violence.

Most measures, however, address paid or unpaid family medical leave or paid sick leave. The District of Columbia helped lead the way with its Paid Sick and Safe Leave Act of 2008, requiring up to seven days paid sick leave for most employees. This year, the DC Council went further, enacting the Universal Paid Leave law, which took effect April 7. The new law provides covered employees with eight weeks of paid parental leave, six weeks of paid family leave, and two weeks of paid personal medical leave, all to be funded by a 0.62 percent increase in DC employer payroll taxes. Similar proposals are progressing in California, Connecticut, Massachusetts, Minnesota, Missouri, New Jersey, and Pennsylvania.

Minimum Wage Increases

State minimum wage issues continue to make news, even as the federal government considers a retreat from last year's attempted expansion of eligibility for overtime pay (blocked in December by a federal court). More than a dozen states have proposed some type of new wage rate increase this year alone, and the "fight for $15" movement continues to demand an increase that was considered unthinkable only a few years ago. California's minimum wage law dictates increases that will reach $15 per hour in 2022. Meanwhile, the federal minimum wage remains at $7.25, though federal government contractors are still required to pay at least $10.20 per hour under a 2015 executive order that has not yet been rescinded by President Trump.

Trends Favoring Employers

In two areas in particular, lawmakers have moved to counter trends that they considered harmful to employers in their states.

Joint employment. In recent months, several states have enacted laws to clarify that a franchisor is not the employer of a franchisee or the franchisee's employees. The last few years have seen an increase in these types of bills, in response to legal decisions and federal agency interpretations that have expanded the concept of joint employment. Though associations typically are not franchise arrangements, they may nevertheless benefit from this type of state legislation in their relationships with other business entities, including vendors.

A number of states have acted to protect franchise operations in particular from the threatened impact of expansion of the joint-employer doctrine. By August, new laws will take effect in Arizona, Kentucky, North Dakota, South Dakota, and Wyoming, with more bills advancing in other states.

Preemption. The increased number of progressive wage and leave proposals in many urban centers are causing multistate employers to confront a patchwork of conflicting laws throughout the country and even within individual states, creating untenable burdens on human resources functions. In response, many states are considering preemption laws, which would prevent localities from enacting ordinances exceeding statewide requirements.

Several states—including Alabama, Arkansas, Georgia, Iowa, Ohio, Pennsylvania, Rhode Island, and Tennessee—have already passed preemption laws, and a dozen states are considering similar bills this year. Some of these measures focus on specific targets, expressly prohibiting ordinances that affect, for example, paid sick leave or minimum wage.

Other measures are broader in scope. A new Arkansas law generally prohibits political subdivisions from establishing any employer obligation that exceeds the requirements of federal or state law. The Iowa governor signed a similar bill, which applies retroactively and voids minimum wage increases already adopted in four counties. A Pennsylvania proposal would prevent municipalities from regulating "employer policies or practices"—a term that covers, but is not limited to, wages, benefits, "the workplace," employment relationships, and leave time.

Regardless of what happens to workplace regulation at the federal level in the coming years, the trend toward imposing increased burdens on employers through state workplace laws appears to be building momentum, though the results vary widely around the country and even within individual states. Association employers need to be increasingly vigilant in monitoring and complying with changes in such laws, which affect both the organizations and their members.