What Law Applies When Supervisor, Employees Live in Different States?
If a supervisor lives and works in one state but has direct reports in another, is the supervisor required to complete harassment training compliant with the laws of the states where his subordinates work?
Before turning to the question of which state laws apply to situations involving subordinates who work in a state different from their supervisor, it’s important to remember managers and employers must comply with a number of federal harassment laws with regard to employees residing within the United States: specifically, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA). The federal laws apply regardless of the employees’ and supervisors’ locations. You should be sure:
- All employees are well-versed on not only the content of the regulations but also how to report claimed violations; and
- They are protected against retaliation for making a complaint under any of the federal laws.
State Laws Vary
State laws on harassment tend to vary from state to state. There may be variations on whether an employer is covered by the applicable state provision. For example, in Alabama, an employer is covered by the age discrimination statute if it has 20 or more employees, while an employer in Alaska is covered if it has one or more employees (see “Discrimination—Employment Laws” on the National Conference of State Legislatures website).
Protected characteristics also differ between states. For example, in the District of Columbia, an employee is protected against discrimination based on personal appearance, political affiliation, and breastfeeding status, while an employee in Florida is not.
Given the discrepancies between state laws, it’s important for you to identify which state laws apply when a supervisor may work in a state different than their employees. Determining which law applies to potential discrimination complaints requires you to consider multiple factors.
If an employment contract exists, it may identify whether a specific jurisdiction’s laws apply. For example, employees may work and reside in Wisconsin, the company they work for may be domiciled in Delaware, and the employment contract may dictate that Delaware law applies.
The so-called “choice-of-law” provisions, however, aren’t necessarily black and white. In Wisconsin, for example, courts have acknowledged that while parties may stipulate to the law applicable to their contracts, they may not do so “at the expense of important public policies of a state whose law would be applicable if the parties’ choice of law provision were disregarded.” So, a Wisconsin court may invalidate a choice-of law provision in an employment contract if upholding it would somehow contradict a public policy the state court felt was extremely important.
If no employment contract or choice-of-law provision exists, you won’t find a simple answer for which state’s laws apply. It may come down to a judicial determination after examining which state has the most contacts with the parties and the issues. Each state has its own legal analysis for determining the choice of law in the absence of a contractual agreement.
From a practical standpoint, it may be best to have supervisors review both the laws where they reside and the laws where their subordinates live. If there is any discrepancy between the laws, they may want to err on the side of the more conservative (or employee-friendly) set of laws from a risk-management perspective.
This article, slightly modified to note recent updates, was featured online in the Wisconsin Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.