> In other news, Microsoft to comply with a new law
Microsoft is under no obligation to comply with Washington law outside Washington. That's what they're doing here.
Microsoft is under no obligation to comply with Washington law outside Washington. That's what they're doing here.
Directly from the article: "Pay experts have long predicted companies would not want to mess with different practices in different states. Doing so not only complicates hiring practices for human resources departments, ..."
There is probably a lot more nuance and qualifications of when it's necessary to disclose and from a company that employs more than 150k employees (according to a quick google) there's probably even more complexity and chaos.
The problem is that 'specific places' very dynamic, and is hard to pin down when it comes to employment. A candidate/employee may move to/from jurisdictions where this is a requirement, and job postings may or may not be shown across different jurisdictions.
Does Microsoft want to invest time wrangling in court concerning a Colorado resident not seeing the pay range when they are using a VPN? Or when a candidate becomes a Colorado resident some time between the phone-screen and the first interview? Should Microsoft recruiters stop using external job-boards, and instead wait for a salary geo-fencing feature to be implemented in their internal jobs tool? What is the case law for out-of-staters who will be moving into a state with such a law for employment? How about remote candidate in Texas, working for a team based in Washington - and the reverse? There are dozens of edge cases, and for a company the size of Microsoft, can easily result in hundreds to thousands of infractions per year - the juice may not be worth the squeeze.
Corporations are risk averse, they don't want to have to deal with potentially getting sued if a job opening starts out in one area and then moves to another one where suddenly the way the opening is described is illegal.
It's just easier to do it the same everywhere if the advantage they're giving up is small.
Not terribly helpful.
[1] https://www.dwt.com/blogs/employment-labor-and-benefits/2022...
Washington state can't regulate how Microsoft hires people in Texas.
Microsoft Corp. isn't even a Washington legal entity. (EDIT: Never mind, I stand corrected [1]. In any case, the broader point stands. Delaware doesn't get to regulate how its entities hire outside Delaware. This is well-settled employment/interstate commerce law.)
[1] https://www.sec.gov/ix?doc=/Archives/edgar/data/789019/00015...
So yes, in this situation, even if MS were incorporated in Delaware, Washington state could pass laws that bind how the company acts anywhere in the world.
Washington also isn't the only state passing this style of law. Putting up the systems and processes to comply with this law only for Washington-based positions would probably not be worth it.
This is not true [1]. It's especially untrue with respect to employment, a domain in which federal statute has a lot to say about who can regulate whom.
In this case, Dormant Commerce does not apply since the salary disclosure laws apply to any company operating in the state, regardless of where they're headquartered or incorporated. It applies equally to all.
So you go online and fill out an LLC for another state, and just say you are licensing your brand name to that LLC in another state that is doing all the sales in that state
It's illegal to do that. What's the defense, it's legal to do that somewhere else?
That part of the justice system doesn't play around. There are people in jail for felony murder for selling the baggies to the guy who sold the drugs to the guy who overdosed.
Thats the only action that occurred in the state
> Microsoft was incorporated in the state of Washington on June 25, 1981; reincorporated in the state of Delaware on September 19, 1986; and reincorporated in the state of Washington on September 22, 1993.
https://app.quotemedia.com/data/downloadFiling?webmasterId=9...
Washington (State or Other Jurisdiction of Incorporation)
California passes a law, and because doing business in California is good for the bottom line they will comply with the law, and in so doing set a new defacto national standard. But, if this burden becomes too onerous, the business can simply not do business with California or move out of California. But, California is such a large market it's quite a high burden to reach.
The commerce clause does not prevent states from having laws which impact interstate commerce unless:
(1) They are preempted by federal exercise of commerce clause powers (though that's really a supremacy clause issue), or
(2) they discriminate against or excessively burden interstate commerce (the dormant commerce clause doctrine).
This would kind of be like the Exxon case, but if Maryland had tried to prevent Exxon from having gas stations ANYWHERE in the US if they started doing business in Maryland.
"Enter if you dare, but all your business in the rest of the nation will be affected and you will lose your competitive edge vis-a-vis recruiting firms that stay out of Washington!"
The upthread claim is that it globally binds Washington entities, not that it globally binds foreign entities doing business in Washington. If it did the latter, and the practical impact was as described, it might be considered an undue burden. It might not. Its a lot easier to find cases finding substantial but non-discriminatory burdens on interstate commerce not to be violations of than to find ones holding them in violation of the dormant commerce clause, and this clearly isn't a discriminatory burden in the sense that it would place restrictions on out-of-state actors that are not placed on Washington-based actors.
> This would kind of be like the Exxon case, but if Maryland had tried to prevent Exxon from having gas stations ANYWHERE in the US if they started doing business in Maryland.
I think that’s a wildly invalid analogy, and, in any case, what you want in an analogy to make your case is an analogy to a case where the courts found a dormant commerce clause violation, not a analogy to a hypothetical variant of one where they did not where you conjecture that they might have ruled differently.
Discriminating based on an employee's state of residence is totally fine. Californians get different disclosures and rights compared with say Nevadans. Nevadans can't sue for those benefits; they're not entitled to them.
Whether they should be allowed to engage in the regulation of interstate commerce for activities that occur entirely extra-state is probably more along what you intended, but even that you could probably find allowed or as-yet-indeterminate exceptions to.
This is fine. Sacramento can regulate what's coming into California. It cannot set food labeling requirements for Michigan.
It can regulated what is sold or produced in California, but, because of the Commerce Clause, it's more limited in regulating what comes in to California.
> It cannot set food labeling requirements for Michigan.
It absolutely can set food labelling requirements for food commercially produced in California, except to the extent such regulations are preempted by federal law, whether or not it will later be shipped to Michigan.
No, it banned sale of foie gras entirely (it did not single out importation), and even so the ban, to the extent that it prohibited individual consumers from buying it for import from out-of-state vendors, was struck down by a federal trial court in 2020 as a violation of the dormant commerce clause, a decision this year upheld by the Ninth Circuit, so it's probably not a law you want to point to as an example of the state being free to regulate interstate commerce.
https://www.theguardian.com/us-news/2022/may/07/california-f...
> and IIRC are planning a law banning the import of foreign oil.
Even if it was true that someone in California was planning on trying to pass such a law, it would be an even more clear, bright-line dormant commerce clause violation than the foie gras law.
We all have opinions on what states can and can't do, and while I agree that precedent should prevent something like this, the fact remains that while you and I agree that they shouldn't be able to, there's nothing to stop them trying, and even perhaps succeeding (at the very least, for however many years it takes for someone to show injury and maybe get it overturned.)
Sincerely, I appreciate you.
They can even regulate interstate commerce in ways that discriminate between in and out of state companies (IE something that seems a very clear commerce clause violation), though this is historically limited mostly to alcohol shipment :)
Honestly, though, the current SC seems much more likely to strike that all down than they have in the past, and give much brighter lines.
Whether it happens as a direct consequence of the word of the law feels less relevant than the fact they made it happen in practice via a settlement.
[1]: https://table.skift.com/2018/07/12/some-fast-food-chains-dro...
It isn't allowed to discriminate against or unduly burden interstate commerce; it can generally regulate the behavior of Washington persons (including corporations) in interstate commerce where such regulation does not discriminate against such commerce (which is clearly the case where the rule is identical to that for in-state commerce of the same type.)
The exception would be if the federal government preempted the kind of regulation Washington sought to make by exercise of federal commerce powers.
Yes, a company headquartered in california is (in many cases) still bound by california law even if the employee is located in another state. The obvious example is non-compete clauses, a california company still usually cannot enforce a non-compete even if the law permits it in the employee's state.
However, this situation is what's called a "conflict-of-law" and it basically comes down to the way the court interprets it.
Take it from the actual lawyers:
> The circumstances that present the strongest case against enforcement of such an agreement involves a noncompete agreement between a California-based employer and a California-based employee. But not all cases are that simple; whether California law applies depends upon the application of “conflict of law” rules.
> “Conflict of law” rules allow courts to determine what state’s laws apply when the laws of more than one state might apply to a dispute but would produce different results. For example, a noncompete agreement between a California-based employer and a Nevada-based employee that was signed in Nevada could be construed under Nevada or California law, depending on the circumstances. If Nevada law applies, the restrictive covenant might be enforceable against the employee. If California law applies, it will not be enforceable.
> Because of these issues, parties often include choice-of-law provisions telling a court to apply a particular state’s law rather than determine what state’s substantive laws apply under a conflict-of-law analysis. In most cases a court will readily accept a choice-of-law provision and apply it as the parties intended. But that’s not necessarily so in the case of a noncompete agreement.
> Like other common law doctrines, conflict-of-law rules vary from state to state. Most states will not enforce a choice-of-law provision that would violate the public policy of a state with a “materially greater interest” in the dispute or where the parties do not have a “substantial relationship” with the chosen state. In other words, a California employer cannot get around California’s prohibition against employee restrictive covenants by requiring his California employee to sign an agreement that includes a Nevada choice-of-law clause.
https://www.bonalaw.com/insights/legal-resources/is-my-out-o...
So yes, employment law in state X usually does bind a company headquartered in state X even if the employee is working in a completely different state. Doesn't matter where you live, you are employed by an entity in state X.
(or rather, it does matter, you still have to pay taxes in state Y and state Y also gets to pass rules of its own governing work in that state... practically speaking what you get is the union of the two sets of rules, you get the combination of both. In the event of a full-on "state X requires A, state Y forbids it"... then the lawyers get paid.)
They want to streamline the job posting portion of HR. They don't want to have to worry about whether or not they have to post the salary range, so they just do what the most demanding law they deal with requires.
Now they only really have to deal with areas that have laws that contradict with laws in other areas. Then you'd default to the law that benefits you the most and deal with the contradictory areas explicitly. Since you have to do the work anyway.
For example, let's pretend that California had a really stupid law that forbid salary ranges from being posted on job listings. Now Microsoft has to be careful about how and where they post jobs. And since it's beneficial for them to hide the information, they'd likely only post the salary ranges where they were required to.
But absent that, don't do work you don't have to do.
California started the trend with its “on reasonable request” pay range disclosure law, and has an proactive disclosure bill that has passed the Senate and is pending in the Assembly this session (DB 1162). But even without a proactive disclosure law, voluntary proactive disclosure reduces the request load for on-reequest disclosure, and consistency is cheaper to implement internally.
https://app.leg.wa.gov/billsummary?billnumber=5761&year=2021...
https://lawfilesext.leg.wa.gov/biennium/2021-22/Pdf/Bills/Se...
>disclose in each posting for each job opening the wage scale or salary range, and a general description of all of the benefits and other compensation to be offered to the hired applicant.
What is general description? Is that how many RSUs? Does it require showing what metal level health insurance is offered and specific the employer paid proportion?
“Colorado residents: Pay for this job starts at at $100,000/year commensurate with experience, plus additional compensation through bonuses, restricted stock units and a comprehensive benefit plan.”