Nature supposedly abhors a vacuum, but does this principle apply to workplace discrimination, worker safety, and other areas of employment and labor law? As the Trump administration and its Department of Government Efficiency (DOGE) taskforce continue its mission of reducing the federal workforce and changing its enforcement strategies, some state governments may respond by adopting laws and rules in areas formerly overseen by the federal government.
For example, will the elimination of federal affirmative action plan requirements prompt states to emphasize similar mandates for state contractors? If federal OSHA abandons its heat stress regulations, will state OSHA programs adopt their own standards to address perceived hazards to their workers? Will the federal government’s reversal of its view of gender identity as a protected form of sex discrimination cause states to strengthen protections for transgender workers?
This phenomenon is nothing new. In recent decades, employers with multistate operations have had to cope with an increasing patchwork of state laws dealing with topics such as marijuana use, criminal background checks, and determination of compensable working time. The failure or inability of the federal government to adopt nationwide laws governing these issues prompted state legislatures to step into the void. In general, states can adopt laws that are stricter than those mandated under federal law as long as they do not interfere with federal enforcement efforts.
If the federal government essentially abandons some workplace enforcement efforts, some state governments may view this as an opportunity to increase their regulation of these practices. For employers, attempting to comply with a variety of state and even local government rules can prove time consuming and raise compliance risks if they are not constantly updating their policies and procedures. In some situations, companies may prefer uniform national rules, even if they are not as employer friendly as some states allow.
Employers with multistate operations should pay careful attention to federal and state law developments. If the federal government appears unwilling to continue enforcement efforts in some areas, states are likely to consider whether to take over these roles to try to preserve the status quo.
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