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By: David Daniels
These topics continue to generate conversation throughout workplaces across the country. No matter the size of your business, at some point you will encounter one of these regulations. For that reason, it’s important for supervisors and managers to understand the basics of employment laws and regulations to maintain proper compliance. Here is a 30,000 foot view of the employment areas that can be the most troubling for the employer.
We all know that at-will employment means that an employer can terminate an employee at any time for any reason, except an illegal one, or for no reason without suffering legal liability. Likewise, an employee is free to leave a job at any time for any or no reason with no adverse legal consequences.
Most organizations will define their employment policies in an employee handbook or manual, a job application or contract. Though not legally mandated, many employers require new hires to sign the employment handbook acknowledging that they have read and are aware of the policies in place.
State laws offer some general protection from at-will termination since most employers are required to provide the following within 24 to 72 hours of separation:
If an employer violates the worker’s right through discrimination or harassment, the employee can sue for damages.
Age Discrimination in Employment Act (ADEA)
The Equal Employment Opportunity Commission (EEOC) describes this Act as forbidding age discrimination against people who are age 40 or older. The law forbids discrimination in any facet of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, benefits and any other term or condition of employment. While this act doesn’t protect employees under the age of 40, some states have established laws that protect younger workers from age discrimination. It’s important to know that it is not illegal for an employer to favor an older worker over a younger one, even if both employees are age 40 or older. In recent years it has been legal and popular for employers to ‘buy out’ older employees by offering attractive severance packages to workers they wish to replace. If an employee accepts the package, they sign away their rights to sue for age discrimination.
Here are some requirements for employers that choose to take this path:
Americans With Disabilities Act (ADA)
According to the US Department of Justice, the ADA prohibits discrimination based on disability in employment, public accommodations, commercial facilities, transportation and telecommunications.
A person with a disability is defined by the ADA as:
In 2008, The Americans With Disabilities Amendments Act (ADAAA) was added to the original law. These amendments make important changes to the definition of the term disability. The purpose of this addition was to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability.
Potential disabilities in the ADAAA include:
The Fair Labor Standards Act (FLSA)
According to the Department of Labor, the FLSA establishes minimum wage, overtime pay, record keeping and child labor standards. Arguably the hottest topic surrounding the FLSA is wage & hour violations. Employers with the best intentions can improperly classify a worker as FLSA exempt and then fail to pay the overtime wages they’re due, leaving the organization open to potential penalties and litigation. No matter the size of your business, the Department of Labor is keeping close watch on wage and hour violations. Think it can’t happen to you? Here are just a few examples of some businesses that were not spared the wrath of the DOL:
Family and Medical Leave Act of 1993 (FMLA)
The FMLA is a labor law requiring covered employers to provide employees with job-protected and unpaid leave for qualified medical and family reasons. Eligible employees are entitled to 12 workweeks of leave in a 12-month period for:
The FMLA was introduced to balance the demands of the workplace with the needs of families. Should the FMLA be violated by an employer, workers can seek damages for lost wages and benefits, the cost of child care, plus an equal amount of liquidated damages unless an employer can show it acted in good faith and reasonable cause to believe it was not breaking the law.
Title VII of the Civil Rights Act of 1964
This federal law originally prohibited employers from discriminating against workers or applicants on the basis of sex, race, color, national origin and religion. Now protections for physical or mental disability, reprisal and sexual orientation have been included as well.
Employment Class Actions
Class actions brought on behalf of employees for wage and hour violations have been around for decades, but evidence is emerging hinting that these allegedly illegal practices by employers are becoming more prevalent than ever.
U.S. federal law protects individuals from discrimination or harassment based on the following nine protected classes: sex, race, age, disability, color, creed, national origin, religion, or genetic information (added in 2008). Many state laws also give certain protected groups special protection against harassment and discrimination, as do many employer policies. Although it is not required by federal law, state law and employer policies may also protect employees from harassment or discrimination based on marital status or sexual orientation. The following characteristics are “protected” by United States federal anti-discrimination law:
Race – Civil Rights Act of 1964
Religion – Civil Rights Act of 1964
National origin – Civil Rights Act of 1964
Age (40 and over) – Age Discrimination in Employment Act of 1967
Sex – Equal Pay Act of 1963 and Civil Rights Act of 1964
The Equal Employment Opportunity Commission interprets ‘sex’ to include discrimination based on sexual orientation and gender identity
Pregnancy – Pregnancy Discrimination Act
Familial status – Civil Rights Act of 1968 Title VIII: Prohibits discrimination for having children, with an exception for senior housing. Also prohibits making a preference for those with children.
Disability status – Rehabilitation Act of 1973 and Americans with Disabilities Act of 1990
Veteran status – Vietnam Era Veterans’ Readjustment Assistance Act of 1974 and Uniformed Services Employment and Reemployment Rights Act
Genetic information – Genetic Information Nondiscrimination Act
Individual states can and do create other classes for protection under state law.
To prevent class-action lawsuits, here are some established guidelines for what you cannot do during the hiring and firing process on the basis of membership in a protected class:
If you have questions or would like more information, please contact David Daniels at [email protected].