Supplemental materials for LEAP 2025 session Here come the new state employment laws for 2025
States are emerging as prime sources of new employment-related laws. Congress didn’t pass much in the way of employment laws at the federal level this year. The Supreme Court largely steered clear of issuing opinions on employment-law questions (although one case did address sex discrimination).
That has left states to pick up the slack, subjecting employers to a dizzying array of new labor and employment laws. Here is a sampling of new laws scheduled to go into effect on Jan. 1, 2025, or soon after.
Background checks
Child labor
Several states have tightened their child-labor laws. Others loosened them.
CROWN Act
Domestic violence leave
Paid sick leave
Pay transparency
Several states require starting salaries to be posted with job ads.
Workplace safety
Final note: This list does not cover every new law. Check with your state department of labor for the latest minimum-wage increases and any other new laws or regulations effective in 2025.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session The Hiring Workshop: Legal Strategies and Best Practices
Re: Employee Lawsuit Risks
Hiring is one of the most difficult and legally dangerous tasks for supervisors. Just a few ill-timed words in a want ad or interview can trigger a legal complaint. Here are the key liability hot spots to watch out for in the hiring process:
Employment advertisements
A help-wanted ad that directly or indirectly states a preference for applicants based on gender, age or other protected characteristic is generally unlawful.
If you participate in drafting employment ads, list only the necessary job-related skills and qualifications—for example, “must be able to lift 50 lbs.”—rather than assumptions about who can perform the functions of the position—such as “male furniture-mover wanted.”
There are a few exceptions to this general rule, such as when a “protected” characteristic is a bona fide occupational qualification (BFOQ) for the job (e.g., requesting a female to work in a women’s locker room).
Job descriptions
Although no law requires organizations to maintain job descriptions, it’s a good practice. Job descriptions can help applicants understand the job’s requirements and discourage poorly suited applicants from applying. Here are tips for drafting job descriptions:
– List the “essential functions” of the job—the fundamental job duties.
– Identify the skills, knowledge and abilities required to perform the essential functions and any special requirements for the job.
– Include a summary of nonessential functions that an employee may be asked to perform occasionally or intermittently.
– Include descriptions of the work environment, equipment and expected work habits.
– Include a disclaimer that the job description does not constitute an exhaustive list of duties and that management may revise it at any time.
– Review and update descriptions as needed so they remain accurate.
Job interviews
Written job applications and face-to-face interviews help hiring managers gather applicant information and assess their qualifications. But asking for some kinds of information may violate anti-discrimination laws. Stick to questions that assess a candidate’s skills, ability or qualifications.
Avoid questions that may trigger stereotypical assumptions about protected class status, such as:
– Marital status: Are you married? Is that your maiden or married name?
– Age: How old are you? When did you graduate from high school?
– Disability: Do you have any disabilities that would impair your ability to work? How often were you out sick in your last job?
– Religion: Which church or synagogue do you attend? What religious holidays do you observe?
– Gender/sex: Are you pregnant? What will you do with your children while you are at work?
– National origin/race: Where were you born?
Background checks
Federal law sets limits on employers’ ability to obtain background reports and demand preemployment medical examinations. Before an applicant’s references are checked, he or she should be notified in writing that the check is occurring. Obtain the applicant’s written consent to the reference checks.
When checking an applicant’s references, ask only for job-related information. Stay away from anything unrelated to how the person could perform the task at hand.
Job offers
Supervisors need to be mindful of inadvertently making promises they don’t intend to keep.
Enthusiastic managers sometimes make statements to applicants that suggest long-term or permanent employment (“You’ll always have a job here if you hit your sales quota.”) or indicate that they can only be fired for cause (“You will always be treated fairly.”). Those statements can easily become ammunition in later breach-of-contract litigation.
Avoid making unintended promises, either orally or in written communications, such as offer letters. That way, you will retain flexibility to respond to personnel issues in the most appropriate way, given the circumstances.
Hire education: 6 smart do’s and don’ts
Despite the complexity and legal risks of the hiring process, the best advice for managers can be captured in a few fairly simple rules:
1. Don’t use advertisements that directly or indirectly express a preference for (or exclude) a person of a particular protected class status (age, sex, race, religion, disability status, etc.).
2. Do draft job descriptions that accurately describe the positions and list the “essential functions.”
3. Do ask interview questions that relate only to an applicant’s ability to perform essential functions of the job. Again, avoid protected characteristics.
4. Don’t ask questions that may trigger stereotypical assumptions about applicant’s characteristics.
5. Don’t consider an applicant’s protected class status when making hiring decisions.
6. Don’t make unintended promises in conversations with applicants or in the offer letter.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session The Hiring Workshop: Legal Strategies and Best Practices
Download Hiring: Craft Job Postings That Cut Legal Liability.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session The Hiring Workshop: Legal Strategies and Best Practices
Employers increasingly rely on artificial intelligence-based software to manage the hiring process. Using AI algorithms to scan and screen job applications and résumés can save time and effort.
Plus, according to AI program developers, the software may even shield you from allegations that you discriminated against an applicant after discovering some protected characteristic—their age or an ethnic-sounding name, for example—when you reviewed application materials.
Turns out, that may not be the case. Critics of AI software claim discrimination may be baked into the algorithms. The EEOC recently launched an initiative looking into inherent bias in AI hiring programs. States have also begun questioning whether AI lives up to its promise of quick and non-discriminatory screening.
For example, in March, the California Fair Employment and Housing Council released draft regulation revisions that expand the definition of AI—in its terminology, automated-decision systems—to include any computational process that includes algorithms that screen résumés for terms or patterns, quizzes or other challenges that assess desired characteristics and online screening tests for cultural fit, personality or cognitive abilities. The regulations would forbid use of intentionally discriminatory programs, of course. But they would also ban AI programs that are facially neutral but have disparate impact on a protected class.
A federal court handling a California employment discrimination case just asked the California Supreme Court to decide whether pre-employment screening providers can be held liable for impermissible questions during medical screening exams. If the answer is yes, developers of AI screening and hiring software would almost certainly fall under the same category.
Advice: If you use AI software to hire, ask the developer if they have tested their programs for both intentional and disparate-impact discrimination.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session A New Day For DEI
Last summer, the Supreme Court decided in Students for Fair Admissions v. Harvard that affirmative action in college admissions violated anti-discrimination laws, so college and universities could no longer use it to decide who to admit. Although the case had nothing to do with employment law, the ruling triggered several lawsuits challenging corporate diversity, equity and inclusion programs.
These were essentially reverse-discrimination lawsuits in which plaintiffs accused employers of excluding them from hiring and promotions, fellowships and mentoring programs because of their gender, sex or other protected characteristics.
Some employers responded by opening fellowships and the like to all employees. Others eliminated DEI programs entirely. Still others are defending their policies in court, waiting to see what happens.
But a year after Students for Fair Admissions, other employers are taking different approaches, finding novel ways to diversify their workforces without resorting to specific hiring and promotion goals.
Here are some promising approaches:
Widen the applicant pool. Instead of looking for individual candidates with specific diversity characteristics, some employers are broadening the pool from which they seek qualified candidates.
For example, they’re ramping up efforts to recruit on college campuses where more diverse potential candidates study. Recruiting at historically Black colleges and universities (HBCUs) will increase the pool of Black applicants. Employers can do the same by recruiting at Seven Sisters colleges like Barnard, Vassar, Mount Holyoke and other institutions that are historically—and largely remain—women’s colleges.
Encourage word-of-mouth referrals. For decades, the old boys’ network was a recruiting mainstay. White, male hiring managers put the word out to their friends and colleagues to refer likely candidates. The predictable result: an applicant pool that trended decidedly white and male.
But the same word-of-mouth approach can work to increase applicant diversity. Consider providing referral bonuses for current employees who suggest applicants. Just make sure you offer the referral bonus to all current employees, not just those who fit a “diverse” demographic.
Consider foreign-born candidates. Asylum seekers and new immigrants who have work permits can be another source of diverse candidates. Your outreach efforts can include reaching out to organizations that help new residents find employment.
Just make sure your recruiting materials don’t specify that you prefer non-citizen candidates. That clearly would violate immigration laws that forbid discrimination based on citizenship status.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session A New Day For DEI
Last year’s Supreme Court decision in Students for Fair Admissions v. Harvard, which prohibited affirmative action in college admissions, unleashed a torrent of litigation that extends far beyond the halls of academia. Several conservative advocacy groups have filed numerous lawsuits against employers, arguing that the same reasoning the Supreme Court used to strike down affirmative action should also apply to employer initiatives designed to promote diversity, equity and inclusion in the workplace.
Especially under fire are programs like employer-sponsored mentorship programs that list specific protected characteristics as pre-requisites to participate. For example, several law firms have been sued for offering internships designed specifically to attract minority, disabled and otherwise marginalized candidates.
As a result, employers have begun reassessing their DEI programs—and sometimes abandoning them. However, many employers have responded by revamping and rebranding their DEI programs. Many no longer apply the term “DEI” to their initiatives. For better or worse, it has become a lightning-rod label for critics to attack. The hope is that avoiding it will attract less attention from outside groups inclined to file reverse-discrimination lawsuits.
More substantively, many employers no longer refer to diversity and equity as program goals, instead focusing on inclusion.
Approaches to inclusion
One approach is to emphasize the broad goal of attracting a broad pool of applicants from which to choose, rather than using numerical goals based on candidate demographics. Inclusive language is showing up in corporate documents such as shareholder communications, proxy statements and Securities and Exchange Commission filings.
Employers are also refocusing on broadening the places where they recruit talent. The desired result: to naturally and organically end up with a more diverse group of applicants from which to choose.
Many employers have responded by investing in employee resource groups aimed at supporting workers who are veterans and first-generation Americans, as well as those who face challenges around issues like balancing caregiving roles. Those distinctions are all neutral in terms of race and other protected characteristics. However, properly designed, such initiatives signal the employers’ commitment to helping members of underrepresented protected classes succeed in the workplace.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Documentation Essentials and Pitfalls: The Art of HR Record-Keeping
Download How to Document Disciplinary and Performance Problems here.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Documentation Essentials and Pitfalls: The Art of HR Record-Keeping
It happens to every manager: They sit down to prepare a staff member’s review and realize they can remember what the person has done only for the past few weeks. Or they let a single incident (good or bad) color their assessment.
Advise your organization’s managers never to rely on memory to evaluate an employee’s performance. Instead, create a simple recording system for them to use. Such performance logs don’t need to be complicated or sophisticated—a sheet of paper in a folder or a file on their computers will do. (Be sure it’s kept secure to ensure confidentiality.)
Note: A court will quickly dismiss a wrongful-termination lawsuit if performance logs clearly demonstrate a history of performance problems.
8 tips to capture the right info
Each employee should have an individual performance file. Include a copy of the employee’s job description, job application and résumé.
Advise supervisors to follow these steps when recording performance:
1. Include positive and negative behaviors. Recording only negative incidents will unfairly bias your evaluation. Make a point to note instances of satisfactory or outstanding performances, too. One way to ensure balanced reporting: Regularly update employee performance logs, instead of waiting for a specific incident to occur.
2. Date each entry. Noting times, dates and days of the week may help to identify performance patterns and problems that may cause them.
3. Write observations, not assumptions. Be careful about the language you use—your log could become evidence in court. Comments should focus only on behavior you directly observe. Don’t make assumptions about why the behavior occurred or judgments about an employee’s character.
4. Be specific. Example of poor documentation: “Employee was late three times last month.” Better: “30 minutes late on Feb. 5; cited traffic. 45 minutes late on Feb. 9; cited over-sleeping. Hour late on Feb. 23; cited car problems.”
5. Don’t use biased language. A good rule of thumb: Any statement that would be inappropriate in conversation is also inappropriate in an employee log. That includes references to an employee’s age, sex, race, disability, religion or sexual orientation.
6. Be brief, but complete. Use specific examples, not general comments. Instead of saying, “Ben’s work was excellent,” say, “Ben has reduced the number of data-entry errors to less than one per 450 records.”
7. Track trends. Note patterns and flag prior incidents of repeated behavior. Bring your observations to the employee’s attention only after you’ve defined a specific problem.
8. Be consistent. Don’t comment about one person’s behavior if you ignore the same behavior in other employees.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Can we set alternative schedules to avoid California’s overtime requirement?
Assigning some of your work to independent contractors has lots of benefits. You don’t have to carry them on your payroll, withhold taxes when you pay them or provide benefits. But working with independent contractors is not without challenges.
Chief among them is making sure you have properly classified them as independent contractors, a task complicated by the fact that there are several standards for determining independent contractor status.
However, there’s hope on the horizon for organizations that need to make sure they properly classify the contractors with whom they work. A new California law takes effect next month that could provide a classification best-practices model that might be applicable anywhere.
California arguably has the most restrictive independent contractor rules of all. Following them means you likely will pass any of the less stringent tests with flying colors.
The California Freelance Worker Protection Act clarifies who’s an independent contractor and how to treat them. The FWPA, which goes into effect Jan. 1, 2025, creates new requirements for organizations that use freelance workers or independent contractors to provide professional services. The law requires written contracts, careful record-keeping and timely payments.
If you follow these best practices—codified in the FWPA—you should stay on the right side of classification law no matter where you operate:
Get it in writing. No independent contractor agreement should be oral. The FWPA says all freelance and contractor agreements must be in writing. That is something every organization that uses independent contractors should do—every time.
Be specific. Contract documents should include specifics like listing the services the independent contractor will perform and what they will be paid for those services.
Invoicing. Be sure to set requirements for how and when the independent contractor will invoice for services. Include specifics about when they will receive payment and how they will be paid. For example, will you pay invoices within 30 days? Can the independent contractor arrange for direct deposit?
Record-keeping. Organizations using freelancers must keep a copy of the contract for at least four years. Longer is better.
Bottom line: If you use independent contractors, memorialize those arrangements with contracts and retain them for as long as practical.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Can we set alternative schedules to avoid California’s overtime requirement?
Q: We are a small business that provides temporary staffing to hospitals in California. California law requires paying overtime when employees work more than eight hours in a workday. A hospital to which we supply workers has asked us if our employees can work four 10-hour shifts with no overtime instead of five eight-hour shifts. I don’t think we can do that, as I am not sure employees can voluntarily waive their overtime rights. Can we agree to the hospital’s request?—P.C., California
A: The federal Fair Labor Standards Act requires overtime pay if an employee works more than 40 hours in any one workweek. However, not every state follows that rule. As you note, California requires overtime pay when an employee works more than eight hours in a workday.
But California also allows for alternate work schedules such as four 10-hour shifts, for a total of 40 hours per week. In that case, employees would not receive overtime for the scheduled days unless they worked more than 10 hours on those days. If they worked an extra shift that week, they would receive the overtime rate for that day. Note that employees must agree to the alternative schedule.
Online resource: Read more about California’s overtime rules here.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
