Recent employment-related legislation. (State Regulatory Update)

In 1991 the various state legislatures were active in the area of regulation of employment matters. Much of the new legislation limits the traditional concept of employment-at-will by restricting the bases upon which an employer may make disciplinary or termination decisions. Other legislative efforts are designed to define the parameters of preemployment inquiries. Still other legislation addresses the withholding of wages for child or spousal support.

In all, this heightened legislative activism on the state level indicates a trend toward awareness of individual rights and further limitations upon the doctrine of employment-at-will. This article identifies several areas in which state legislatures perceived a need for regulation and describes the varying responses selected by several states.

Recent legislation has also addressed the areas of tobacco-use discrimination (see Employment Relations Today,"Questions & Answers," Summer 1991), drug testing (see Employment Relations Today, "State Regulatory Update," Winter 1991/92), and other forms of discrimination.

PREEMPLOYMENT INQUlRY

Employers have traditionally been held responsible for the acts of employees under the doctrine of respondeat superior. More recently, employers have been found liable for their own negligence in hiring employees with dangerous proclivities. Given this expansion of potential liability and the increasing availability of various information on computerized data-bases, employers have indicated a general desire to obtain more information about prospective employees prior to hiring. Employers have obtained information through criminal records checks and credit reports, among other sources. Sensing a need to serve the employers, legitimate interest in obtaining such information, yet avoid unnecessary intrusion into the privacy of employees, state legislatures have sought to regulate these sources of information.

With respect to consumer credit reports, employers in Maine may not request a credit report on a prospective employee unless the applicant is first notified that a credit report may be requested and that, on request, the applicant will be informed whether or not a credit report was in fact requested. If a report was requested, the applicant must be informed of the name and address of the consumer reporting agency. Similarly, California employers are required to notify prospective employees that a credit report has been requested and, if the prospective employee wants a copy, must request that the credit reporting agency provide a contemporaneous report to the prospective employee at no cost to the prospective employee. Credit reporting is further limited in California in that credit reporting agencies …