Multistate employees: What law governs?

Q         If an employee works several days a week in one state and then several days in another state, which state’s employment laws apply? How must we evaluate multistate work arrangements?

There is no one clear answer to which state’s employment laws apply to multistate employees, or “split workweek employees.” Federal laws such as the Family and Medical Leave Act (FMLA), the Fair Labor Standards Act (FLSA), and Title VII of the Civil Rights Act of 1964 apply regardless of where the employee works. However, state and local laws vary. In general, the answer is that the employment laws of both states typically apply. In the Intermountain West, there is the same underlying rule—that each state’s employment laws reach the work physically performed within that state and generally does not reach work performed in another state. For example: For an employee who works three days in Utah and two days in Colorado, Utah law covers the Utah dates and Colorado law covers the Colorado dates. Note that choice-of-law clauses in employment contracts do not always, on their own, extend the particular state’s law onto the employee. Where protections between state laws overlap, the more protective standard in favor of the employee typically governs.