The last 18 months have been challenging for HR teams balancing compliance with what is best for their people, and the months and years ahead look no easier to navigate. In this conversation, Affirmity’s Mauri Spears (VP, Consulting Services) and Roy Zambonino (Sr. Solutions Consultant) are joined by employment law expert Jocelyn King, CEO and Founder of VirgilHR. They discuss why workforce data remains a critical foundation for organizational strategy, and how multi-state businesses can track, comply with, and make sense of increasingly fragmented federal, state, and local-level legislation.
How Organizations Can Get Their House in Order for the Year Ahead
Q: What is now the role of workforce analytics, and how does data help organizations navigate risk in the current climate?
Mauri Spears: As we all know, the underlying regulations like Title VII, Section 503, VEVRAA, and the ADA, have largely not changed. What has changed drastically is the enforcement of these regulations.
So it’s imperative that organizations continue reviewing and monitoring their workforce and gaining an understanding of key metrics such as adverse impact, applicants to hires, promotions, terminations, even voluntary versus involuntary terminations. You should review your workforce and sources of availability, even if it’s no longer in the EO 11246 sense of placement goals. Because the letter of equal employment opportunity law remains the same, it’s important to identify potential barriers to equal employment in your workforce in conjunction with adverse impact and compensation reporting.
While it’s very important that companies spend time with their metrics, we also don’t want to overlook the more qualitative aspects in our organizations, especially policies and procedures. Keeping your policies and procedures (including your recordkeeping procedures) up to date, documented, and enforced is essential, because these are areas of definite risk, particularly with regard to things like outreach or accommodations.
The risk is real: all these factors have been targeted in investigations and lawsuits over the past 18 months.
Roy Zambonino: Definitely. At the same time, we’re finding that there’s been a shift from organizations analyzing their workforce representation toward analyzing the decisions that are being made along the entire talent life cycle.
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Q: When would you recommend to customers that they look more closely at their selection activity in hiring, promotion, retention, and pay?
Mauri Spears: When reviewing their workforce data, organizations must use statistical measures to determine whether anything is statistically significant. If something gets flagged by these tests, that’s not in itself a statement of guilt or wrongdoing—it’s just a signal that you need to take a deeper look at a particular selection process to ensure that you’re in line not only from a regulatory standpoint, but also from an organizational perspective on how selections are being conducted.
Workforce representation and sources of availability then come into play: you want to be able to look at this information not as a goal-setting activity, but to see if you can identify any potential barriers to equal employment in your workforce in conjunction with your adverse impact and your selections.
It’s really important to look at all the information in your workforce talent life cycle from application and hire all the way through to termination, and to understand the movement between each stage. Then you ask whether there are any barriers that need a closer look.
We have a workforce talent lifecycle document we share with our clients, and having everything in one place is invaluable. They can look at it multiple times a year and check those points along the way.
Additionally, we recommend running a cohort assessment identifying differences in compensation that can’t be explained by factors such as tenure and performance rating. These are all areas where you definitely want to take a closer look.
Q: Is it safe for organizations to do less in a post-affirmative action world?
Roy Zambonino: Some companies out there have definitely shifted towards doing very rudimentary analyses, often only once a year, in a way that is the complete opposite of what we recommend. Some are eliminating a lot of what they had built structurally in terms of reporting, and they’re just doing the bare minimum. They’re only going to do what’s required, and what’s required is very little. We’d say that this is a huge risk based on what is actually required in the underlying regulations.
Mauri Spears: We strongly recommend organizations review their progress throughout the year to properly understand movement and selections, find those statistically significant areas early, and get those further reviews done. Organizations whose policies and procedures reflect a more aggressive review analysis process are ultimately better prepared for scrutiny. They’re in a more stable position to address and dismiss claims before they become a court case.
Acting before it escalates is the order of the day. Use the intelligence and the analysis to adjust your policies and decisions proactively, and document it all.
Aside from workforce data, I would also add that policies and procedures and their impact should be reviewed throughout the year. Organizations are changing their policies and procedures, but right now we’re also seeing many such changes prompted by an increase in federal, state, and local legislation.
Internal audits are a powerful means of not only vetting quantitative issues, but also the qualitative aspects of an organization. For example, your job descriptions, job postings, and website content.
There are other aspects of our current landscape that mark unstable ground for policies, procedures, and workforce data. AI is another piece of that puzzle: you need to understand where your organization is using it, especially when it interacts with talent decisions. You must document and vet its actions and capabilities.
Roy Zambonino: When I’m talking to customers that are hesitant to measure their workforce multiple times per year, I compare it to building widgets—more than likely you’re measuring how those widgets are produced throughout the year because machines go out of whack, and your widget may end up being smaller or larger as things go on.
Wouldn’t you want to do the same thing with your most valuable resource, your people? Wouldn’t you want to measure to make sure your selections for candidate pools, for hires, promotions, and terminations are at their best? To me, it’s a no-brainer to measure all of that and make sure it’s within the tolerance levels you expect.
Of course, we’ll usually recommend doing this under attorney-client privilege, especially given the uncertainty in the current enforcement system. But I feel strongly that while smaller companies that retreat from measurement could perhaps start this back up when they realize they need to, larger businesses will have a lot of difficulty. It’ll be expensive, and they’ll wait far too long to build the body of historical data these insights run on.
Jocelyn King: I think we’d also have to say that a clean track record is something worth protecting. The best time to check your compliance is when nothing’s wrong. That’s when you can fix things on your own timeline instead of somebody else’s.
Q: When organizations have an abundance of data to work with, how can they make it actionable?
Mauri Spears: Manageable and actionable begin with having a plan in place and a calendar that includes, at a bare minimum, your federal and state requirements. You have to know what’s required from the moment you kick off organizational analysis cycles—where you’re doing business, and where you meet the thresholds that mean certain laws apply to you.
Whether or not you have an abundance of data, you can’t move forward until it’s clean—we see far too often that organizations pull data, or different areas of the organization pull data, and it’s not necessarily clean or streamlined. If the data isn’t clean, you can’t trust the output. Clean data renders valid, actionable metrics that can be leveraged for multiple purposes: for federal reporting, for your AAPs, EEO, VETS 4212, your state and local requirements, and for your risk analyses.
Data is naturally in different places—HRISs, applicant tracking systems—payroll systems—and you’ll need to identify where all these different sources are upfront. Reconciliation of all data sources is recommended: check that all these disparate pieces align, which is an intensive but ultimately worthwhile process.
Beyond workforce data, you need a plan to review your corporate policies and procedures, your website, your AI policies, and items such as your required training. Furthermore, we like to recommend a communication cadence with management and executive leadership—if we want to make everything actionable, we need their buy-in and their understanding of the requirements at all levels. We want them to know we’re here to help them monitor and address these areas of potential risk, and to understand how we’re going about doing that.
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Q: With certain states legislating in the vacuum created by the retreat of federal workforce laws, which states are ones to watch?
Mauri Spears: I think it has always been the case that state and local jurisdictions have required a somewhat different approach: typically, what we see is federal law as more of a floor or baseline, and those more localized jurisdictions having more aggressive or stricter requirements.
With that being said, California is probably the state that keeps us the busiest, along with Minnesota. Wisconsin and Illinois are also a factor from a workforce data perspective. Then there are the states that will be in the mix soon: Massachusetts, Colorado, and Washington state. These are all perfect examples of why even if the EEO-1 portal doesn’t open for submissions this year, there’ll still be jurisdictions asking for those same metrics.
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How Organizations Can Make Current Legislation Manageable
Q: When you talk to HR leaders, what do you find they’re most worried about going into 2027?
Jocelyn King: Honestly, it’s not one big law keeping people up at night, it’s the sheer volume and pace of change. Everything seems to be moving at once. For example:
- Pay transparency: a few years ago, it was a handful of states, and now it’s a patchwork where the rules on what you post, when you disclose, and who’s covered all vary.
- Paid leave law is similar, with new state programs coming online and each one working a little differently.
- AI’s use in hiring is completely new territory. Many HR teams are using tools that screen or rank candidates, and states are starting to implement legislation to govern that: notices, bias audits, documentation. Teams can struggle to get a handle on what applies to them.
And on top of all that, the federal picture keeps shifting, so there’s more pressure on the state and local level. What HR leaders tell me is that they don’t feel like they’re missing one big thing, they worry they’re missing a lot of small things.
Roy Zambonino: And I’m sure we all work with companies that operate in multiple states, 10, some maybe 20, some maybe even across the country. It seems like we get new regulations and changes every week.
Q: How realistic is it for an HR team to manually keep up with this changing legislative environment?
Jocelyn King: I’ll be direct. It’s not really realistic to manually track it all, at least not reliably!
If you’re in two or three states, sure, someone on your team can set up alerts, read the updates, and keep a spreadsheet going. I remember my very first role as a director of human resources for a multi-state employer. We hired in California, but we had employees in maybe 15 different states, and it was really difficult to manually track and comply with those laws. Anytime SHRM or another HR news source sent an email with an update about a new law, I’d add that to my spreadsheet. But it wasn’t very scalable—once you get to 10 or 20 states, you’re not just tracking state law anymore. You’re tracking cities and counties, too, and those change constantly. Minimum wage alone can update multiple times a year in some places!
So what usually happens is that one or two people become the compliance memory of the organization. They’re doing their best, but they also have 10 other jobs. And when they’re on vacation, or they leave, they take that knowledge with them. So the question isn’t really whether your team is capable—they are. It’s whether a manual process can keep up with the volume without something slipping through. And at scale, it usually can’t.
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Q: What should companies that have remote teams located in many states be aware of?
Jocelyn King: Well, firstly when an employee works from a given state, that state’s employment law generally follows them—it doesn’t matter where your headquarters is. This touches on more than people expect: there’s minimum wage, overtime, sick leave, final paycheck timing, pay transparency, required notices and posters, and even payroll tax registration. This catches a lot of companies off guard, especially if someone moves without letting HR know.
I think there are three steps:
- Maintain an accurate list of where everyone’s actually working, because that list drifts over time
- Figure out what’s different in each of the states your people live in compared to your home state
- Set up a process to catch whenever someone relocates.
Problems follow when an employee quietly moves and nothing gets updated. Remote work is a great benefit, but it quietly turned many single-state employers into multi-state employers without anyone really noticing!
Mauri Spears: When we conduct our review of workforce data, we always analyze the workforce distribution to determine where additional state and local justification requirements may come into play. This provides the opportunity to point out to clients that they’ve reached a certain threshold and there are reporting requirements they now have to consider.
That’s where something like Employment Law Navigator is invaluable, because you can quickly get an answer about any new states that you suddenly discover you’re operating in. You also need to stay in close contact with your legal, compliance, and procurement teams to get that full picture of where your business operates.
Q: Where do HR teams encounter the most issues? Is it at local level, state level, or federal level?
Jocelyn King: I think it’s a little bit of everything. So, as I mentioned earlier, it’s not one big thing. It’s a lot of small things. Executive orders can be very confusing. They’re left up to interpretation, and in many cases, they’re contested and go to court. But I think personally the local laws are where it gets most difficult because it’s less likely there will be a press release and media coverage, and there are very few vendors out there that are actually tracking localities at that level.
Q: Are there areas of compliance that organizations typically underestimate?
Jocelyn King: Organizations definitely don’t always realize how much risk poster compliance involves. Probably because it sounds so simple: it’s “just posters”, right? But you’ve got federal postings, state postings, and in a lot of places local postings, too. All of these get updated whenever a law changes, whether that’s a minimum wage increase, a new leave program, or maybe a new language an agency requires—some even have to be in multiple languages depending on your workforce.
And then what if you have remote and hybrid employees who won’t ever walk past the breakroom wall? How are you delivering these notices electronically, and does that satisfy the requirement in each state?
The fines for a missing poster may not always be huge, but they can sometimes be $20,000 or more. So it does add up. Furthermore, posters are often one of the first things an investigator looks at when they come into your office. If they aren’t current, it signals that other things may not be current either. So it’s a small item that carries more weight than it seems.
Q: What’s the best way of sharing these kinds of insights across a team?
Jocelyn King: In a lot of organizations, the responsibility of monitoring and dispensing this information has traditionally fallen on one person, but just like the spreadsheet method of tracking everything, it’s not especially scalable or efficient. Collaboration was something that was really important to us as we were building Employment Law Navigator, and we provide unlimited licenses to facilitate it. Within ELN, you can assign tasks to other members of your team. So let’s say you’re in employee relations: you’re the main stakeholder for using this product, and you see a notice come through about a new minimum wage law. You can easily reassign it to an HR generalist on a different team, and they can go ahead and provide that notice to the applicable employees.
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Q: How does Employment Law Navigator help replace more manual methods of compliance monitoring?
Jocelyn King: ELN offers real-time updates: we’re tracking everything daily at a federal, state, and local level, and sending these updates to you so you get a notification from our app if you’re following that particular subject. Or you’ll see the information on your dashboard when you open the app.
We’re not just doing a simple copy and paste of the information as it comes through: we work with our internal legal team to take that legislation and simplify the technical legal language that makes these laws sometimes difficult to easily and quickly understand. We also have a neat task automation feature that triggers when these updates come through. So if, for example, Kentucky increases their minimum wage and you have to provide a wage notice poster to your Kentucky employees, we will automatically create that task for you in the system.
Equip your organization with expertise for a new era of employment processes and compliance: contact us today to learn about our risk assessment and analysis solutions.
About the Author
Grace Mazar oversees marketing at Affirmity with direct responsibility for go-to-market strategy, product marketing and positioning, demand generation, events, and digital marketing.
A seasoned B2B marketing leader with over 20 years of experience, Grace applies her deep industry knowledge and proven outcomes-based marketing tactics to reach and influence targeted audiences.