The Essential Guide to Federal Employment Laws

The Essential Guide to Federal Employment Laws

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The Essential Guide to Federal Employment Laws

, J.D. and , J.D

, 5th Edition

A comprehensive guide to 20 of the most important federal employment laws that every employer and HR professional needs to know. Each chapter summarizes one key federal employment law, including which employers are covered by the law, and what the law requires and prohibits, as well as what recordkeeping requirements must be followed.  The laws covered include:

  • Title VII of the Civil Rights Act of 1964
  • Americans with Disabilities Act
  • Fair Labor Standards Act
  • Family and Medical Leave Act,
  • and more.

See below for a full product description.

Quick answers to questions about 20 Key Employment Laws

This book explains, in plain English, the 20 most important federal employment laws that come up in the workplace. You can look up what each law allows and prohibits, which businesses must comply, and how to fulfill record-keeping, posting, and reporting requirements. Each chapter covers one law, including:

  • Americans with Disabilities Act
  • Age Discrimination in Employment Act
  • Fair Labor Standards Act
  • Family and Medical Leave Act
  • Immigration Reform and Control Act
  • Fair Credit Reporting Act
  • Pregnancy Discrimination Act
  • Equal Pay Act
  • Title VII of the Civil Rights Act of 1964
  • Older Workers Benefit Protection Act, and
  • Uniformed Services Employment and Reemployment Rights Act

The 5th edition is updated to reflect the latest Supreme Court cases, government regulations, and state laws. Every employer and HR professional should keep it close at hand.

"Compliance sections in each chapter help employers understand what they must report, the records they must keep, and what penalties might befall them if they fail to comply." -Library Journal

 

 

 

ISBN
9781413322811
Number of Pages
512

TABLE OF CONTENTS

Overview

  • Which Laws Your Company Must Follow
  • Basic Compliance Tools
  • If You Need More Information

1.  Age Discrimination in Employment Act (ADEA)

  • Overview of the ADEA
  • How the ADEA Is Enforced
  • Complying With the ADEA
  • Agency Resources
  • State Laws Relating to Age Discrimination

2.  Americans with Disabilities Act of 1990 (ADA)

  • Overview of the ADA
  • How the ADA Is Enforced
  • Complying With the ADA
  • Agency Resources
  • State Laws Relating to Disability Discrimination

3.  Consolidated Omnibus Budget Reconciliation Act (COBRA)

  • Overview of COBRA
  • How COBRA Is Enforced
  • Complying With COBRA
  • Agency Resources
  • State Laws Relating to Health Coverage Continuation

4. Employee Polygraph Protection Act (EPPA)

  • Overview of the EPPA
  • Major Provisions of the EPPA
  • How the EPPA Is Enforced
  • Complying With the EPPA
  • Agency Resources
  • State Laws Relating to Polygraph Tests

5. Equal Pay Act (EPA)

  • Overview of the EPA
  • How the EPA Is Enforced
  • Complying With the EPA
  • Agency Resources
  • State Laws Relating to Equal Pay

6. Fair Credit Reporting Act (FCRA)

  • Overview of the FCRA
  • Major Provisions of the FCRA
  • How the FCRA Is Enforced
  • Agency Enforcement
  • Complying With the FCRA
  • Agency Resources
  • State Laws Relating to Credit Reporting

7. Fair Labor Standards Act (FLSA)

  • Overview of the FLSA
  • Major Provisions of the FLSA
  • How the FLSA Is Enforced
  • Complying With the FLSA
  • Agency Resources
  • State Laws Relating to Wages and Hours

8. Family and Medical Leave Act (FMLA)

  • Overview of the FMLA
  • Major Provisions of the FMLA
  • How the FMLA Is Enforced
  • Complying With the FMLA
  • Agency Resources
  • State Laws Relating to Family and Medical Leave

9. Genetic Information Nondiscrimination Act (GINA)

  • Overview of GINA
  • Major Provisions of GINA
  • How GINA Is Enforced
  • Complying With GINA
  • Agency Resources
  • State Laws Relating to Genetic Discrimination

10. Immigration Reform and Control Act of 1986 (IRCA)

  • Overview of IRCA
  • Major Provisions of IRCA
  • How IRCA Is Enforced
  • Complying With IRCA
  • Agency Resources
  • State Laws Relating to Immigration

11. National Labor Relations Act (NLRA)

  • Overview of the NLRA
  • Major Provisions of the NLRA
  • How the NLRA Is Enforced
  • Complying With the NLRA
  • Agency Resources
  • State Right-to-Work Laws

12. Occupational Safety and Health Act (OSH Act)

  • Overview of the OSH Act
  • Major Provisions of the OSH Act
  • How the OSH Act Is Enforced
  • Complying With the OSH Act
  • Agency Resources
  • State Laws Relating to Occupational Safety and Health

13. Older Workers Benefit Protection Act (OWBPA)

  • Overview of OWBPA
  • Major Provisions of OWBPA
  • How OWBPA Is Enforced
  • Complying With OWBPA
  • Agency Resources
  • State Laws Relating to Age Discrimination

14. Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA)

  • Overview of PRWORA
  • How PRWORA Is Enforced
  • Complying With PRWORA
  • Agency Resources
  • State Laws Relating to New Hire Reporting

15. Pregnancy Discrimination Act (PDA)

  • Overview of the Pregnancy Discrimination Act
  • How the Pregnancy Discrimination Act Is Enforced
  • Complying With the Pregnancy Discrimination Act
  • Agency Resources
  • State Laws Relating to Pregnancy Discrimination

16. Sarbanes-Oxley Act of 2002 (SOX)

  • Overview of SOX
  • How SOX Is Enforced
  • Complying With SOX
  • Agency Resources
  • State Laws Relating to Whistle-Blowers

17. Civil Rights Act of 1866 (Section 1981)

  • Overview of Section 1981
  • How Section 1981 Is Enforced
  • Complying With Section 1981
  • State Laws Relating to Race Discrimination

18. Title VII of the Civil Rights Act of 1964 (Title VII)

  • Overview of Title VII
  • How Title VII Is Enforced
  • Complying With Title VII
  • Agency Resources
  • State Antidiscrimination Laws

19.  Uniformed Services Employment and Reemployment Rights Act (USERRA)

  • Overview of USERRA
  • Major Provisions of USERRA
  • How USERRA Is Enforced
  • Complying With USERRA
  • Agency Resources
  • State Laws Relating to Military Service

20. Worker Adjustment and Retraining Notification Act (WARN)

  • Overview of WARN
  • How WARN Is Enforced
  • Complying With WARN
  • Agency Resources
  • State Laws Relating to Plant Closings

Appendixes


A. Federal and State Agencies

  • Federal Agencies
  • State Agencies

B. Nolo Resources

  • Books
  • Nolo's Website

Index

Overview

Which Laws Your Company Must Follow

   Which Federal Laws Apply

   Which State and Local Laws Apply

   Putting It All Together

Basic Compliance Tools

   Lawyers

   Training

   Policies

   Responding to Legal Violations

   Outsourcing

   Documentation and Record Keeping

If You Need More Information

   Government Agencies

   Nolo Resources

 

 

Most managers and human resources professionals—particularly those who work for larger companies—have to deal with federal employment laws every day. These laws apply in nearly every stage of the employment relationship, from hiring and first-day paperwork, to providing benefits and time off, to terminations and layoffs. Whether you are developing workplace policies, creating forms and notices for your company to use with employees, or handling employee performance and discipline issues, you need to understand your company’s legal obligations—and make sure that you don’t inadvertently violate the law.

It can be tough to find out exactly what these federal laws require. That’s where this book comes in. It explains all of the major federal employment laws: whom they protect, who has to follow them, what they require, and what they prohibit. Each chapter in this book covers a single federal employment law and describes the obligations employers have under each law, including deadlines, posting requirements, and record-keeping rules. If you need more information, each chapter includes a list of additional resources. And many of the chapters include charts that provide information on state laws.

 

What This Book Doesn’t Cover

Some employment situations are not covered in this book. If you fall into one of the following categories, the information you need is likely beyond the scope of this book:

Government employers. Although we explain which (if any) federal, state, and local government workers are covered by each law, we don’t detail the special rules that may apply to government employees. For example, although federal government workers are protected from certain types of discrimination by Title VII (see Chapter 18), they must follow a special complaint process that doesn’t apply to private companies. We don’t cover that process here.

Federal contractors. Private employers who contract to do work for the federal government are subject to additional employment laws. We don’t cover those laws here.

 

This overview chapter gives you the information you need to get the most out of this book. First, we explain how to figure out which federal laws your company has to follow and when and how state and local laws might come into play. Next, we cover a handful of practical strategies that will help your company comply with these laws, such as consulting with a lawyer, documentation, and training. Finally, we explain what to do if you need more help.

Which Laws Your Company Must Follow

Employment law comes from many sources. Each of the federal laws (also called “statutes”) covered in this book has been interpreted and refined by court decisions and sometimes by regulations issued by the federal agency responsible for enforcing and administering the law. Many of the topics covered by these laws are also addressed by state, and sometimes even local, laws. If more than one law applies, employers generally have to follow whichever law is more beneficial to employees.

You can use this book to figure out which federal laws apply to your company, whether those laws protect particular employees, and whether those laws apply to the situation you are facing. “Which Federal Laws Apply,” below, will help you get to this information quickly.

This book also provides charts that briefly describe the laws of the 50 states and the District of Columbia, at the end of some chapters. However, you may have to do some research on your own—or talk to a lawyer—to find out whether a state or local law applies to your situation. This topic is covered in “Which State and Local Laws Apply,” below.

Which Federal Laws Apply

Federal employment law consists of three components: the statutes themselves, any regulations issued by the federal agency responsible for administering the law, and court decisions interpreting the law and regulations. Together, these sources determine what the terms in the law mean, what employers have to do to comply with the law, and how violations of the law will be handled. Each chapter of this book covers a federal employment statute, any regulations interpreting it, and the major court cases decided under the law.

Because the employment laws explained here are federal statutes, they apply throughout the country, regardless of what state the company or worker is in. This means that every federal law in this book has the potential to apply to your company if it operates in the United States. We say “potential” because none of these laws apply to every employer and employee, in every situation. Instead, most laws specify which employers need to follow them, which employees are protected by them, and what actions they prohibit and require.

Different Rules for Unions

If your company is unionized, the first place to look for answers to your employment questions is not the law, but the collective bargaining agreement (CBA) between the union and the company. A CBA is a binding contract, so if it gives workers more rights in certain areas (most commonly, wage and hour issues, time off, discipline, and termination procedures), it supersedes the law.

For example, let’s say you want to know how much time an employee can take off for childbirth and parental leave. You look up the Family and Medical Leave Act in this book and see that it requires covered employers to provide up to 12 weeks of unpaid leave. Your company’s CBA, however, gives employees up to 16 weeks of paid leave. Even though the CBA is more generous than the law, you must follow its provisions.

Generally, unions are not allowed to bargain away their members’ federal rights in a collective bargaining agreement. Therefore, a CBA typically cannot provide workers with less than what the federal law requires. However, there are some exceptions to this rule. For example, most courts have upheld a common CBA provision that requires workers to make certain workplace claims only through the union grievance procedure, rather than bringing them to court (which they would otherwise have the right to do). And some laws allow unions and management to bend the rules in a CBA; for example, although some state laws require employers to give workers specified meal and rest breaks, these laws may not apply to a workplace governed by a CBA.

 

Sources of Federal Employment Law

Statutes started out as bills passed by the U.S. Congress and signed into law by the president. Statutes are collected in a set of books called the U.S. Code. The first page of each chapter of this book includes the location of the statute in the U.S. Code. For example, the Age Discrimination in Employment Act (ADEA) is found at 29 U.S.C. §§ 621-634; this means that it’s located in Title 29 of the U.S. Code, at Sections 621 through 634. Each chapter also provides a link to a website where you can view the statute online.

Regulations are administrative rules issued by federal agencies. When Congress passes a law, it usually designates a federal agency to interpret and enforce that law. In employment law, these agencies are often responsible for receiving employee complaints, creating the paperwork (such as posters or notice forms) that employers must use to comply with the law, and imposing penalties on employers that don’t meet their obligations. Sometimes agencies also issue regulations—rules that fill in some of the gaps not addressed by the statute. Regulations are collected in the Code of Federal Regulations (C.F.R.). If regulations have been issued interpreting one of the laws we cover, you’ll find a citation for those regulations—and a website where you can access them online—at the beginning of the chapter. Regulations are updated frequently; our citation is to the most recent version, but you should always check to see whether the regulations have been revised.

Court decisions are opinions written by judges deciding the outcome of a lawsuit. Often, judges have to interpret what a law means in order to decide who should win in court. For example, a court might have to decide what constitutes a reasonable accommodation for an employee with a disability or whether an employer’s decision to transfer an employee who complained of harassment constitutes illegal retaliation. Decisions by the U.S. Supreme Court are the most influential, because they dictate how federal employment laws will be interpreted throughout the country. Decisions by lower courts, such as the U.S. Courts of Appeal and the U.S. District Courts, are binding only in the states or regions those courts cover.

 

To figure out whether a particular federal employment law applies to your company and your situation, you’ll need to answer these five questions:

Does your company have enough employees?

Is your company otherwise covered by the law?

Is the employee covered by the law?

Do all of the law’s provisions apply?

Is this situation covered by the law?

Does Your Company Have Enough Employees?

Many employment laws apply only to employers that have a minimum number of employees. You’ll find these rules under the heading “Covered Employers” in each chapter. For example, an employer with only 20 employees is not covered by the Family and Medical Leave Act (FMLA); only employers with at least 50 employees must comply with that law.

Is Your Company Otherwise Covered?

Some employment laws don’t impose a minimum size requirement, but instead apply only to companies that engage in “interstate commerce” (and, in a few cases, meet a minimum of business volume requirement). These rules are included in the chart, “Laws That Apply by Size or Operations of Employer,” below.

All but the smallest local companies are engaged in interstate commerce within the meaning of these laws. For example, if your company buys, sells, or handles materials or products that have come from or will go to another state, or if your company’s employees communicate across state lines as part of their job duties, your company is most likely engaged in interstate commerce.

For decades, the U.S. Supreme Court has defined “interstate commerce” very broadly, to encompass virtually any activity that crosses—or could cross—a state’s borders. This expansive definition allows the Court to uphold Congressional legislation: The Constitution gives Congress the right to regulate interstate commerce, so Congress has the widest possible reach when interstate commerce is defined in broad strokes.

In recent years, however, the Court has been scaling back this definition to occasionally find that Congress has overstepped its bounds. For example, although the Court ultimately upheld the Affordable Care Act (the health care reform law) on other grounds, a majority of the Court found that Congress exceeded its authority to regulate interstate commerce. This recent holding signals that the definition of interstate commerce remains in flux. If, after reading the relevant chapter in this book, you believe that your company is not covered, you should probably check your conclusion with a lawyer.

Even laws that impose a minimum size requirement don’t apply to every employer that is large enough to be covered. Some laws include exceptions for particular types of employers and some apply only to certain types of companies. For example, the Sarbanes-Oxley Act of 2002 applies only to companies that are publicly traded or required to register with the Securities and Exchange Commission. You’ll find this information under the heading “Covered Employers” in each chapter.

 

Laws That Apply by Size or Operations of Employer

Law

Acronym

Involved in interstate commerce

 

Involved in interstate commerce or have $500,000 or more in annual gross sales

All public companies (publicly traded or required to register with the SEC)

All private employers (1 or more employees)

15 or more employees

20 or more employees

50 or more employees

100 or more employees

Age Discrimination in Employment Act

ADEA

 

 

 

 

 

n

n

n

Americans with Disabilities Act of 1990

ADA

 

 

 

 

n

n

n

n

Consolidated Omnibus Budget Reconciliation Act

COBRA

 

 

 

 

 

n

n

n

Employee Polygraph Protection Act

EPPA

 

n

 

 

 

 

 

 

Equal Pay Act

EPA

 

n

 

 

 

 

 

 

Fair Credit Reporting Act

FCRA

 

 

 

n

n

n

n

n

Fair Labor Standards Act

FLSA

 

n

 

 

 

 

 

 

Family and Medical Leave Act

FMLA

 

 

 

 

 

 

n

n

Genetic Information Nondiscrimination Act

GINA

 

 

 

 

n

n

n

n

Immigration Reform and Control Act of 1986

IRCA

 

 

 

n

n

n

n

n

National Labor Relations Act

NLRA

n

 

 

 

 

 

 

 

Occupational Safety and Health Act

OSH Act

 

 

 

n

n

n

n

n

Older Workers Benefit Protection Act

OWBPA

 

 

 

 

 

n

n

n

Personal Responsibility and Work Opportunity Reconciliation Act

PRWORA

 

 

 

n

n

n

n

n

Pregnancy Discrimination Act

PDA

 

 

 

 

n

n

n

n

Sarbanes-Oxley Act of 2002

SOX

 

 

n

 

 

 

 

 

Section 1981 of the Civil Rights Act of 1866

Section 1981

 

 

 

n

n

n

n

n

Title VII of the Civil Rights Act of 1964

Title VII

 

 

 

 

n

n

n

n

Uniformed Services Employment and Reemployment Rights Act

USERRA

 

 

 

n

n

n

n

n

Worker Adjustment and Retraining Notification Act

WARN

 

 

 

 

 

 

 

n

 

 

Is the Employee Covered?

Some employment laws apply only to employees who have worked for the employer for a certain period of time. Some exclude independent contractors, apply only to employees in certain occupations, or apply to people who don’t even work for the employer. For example, the Consolidated Omnibus Budget Reconciliation Act (COBRA) applies not only to employees and former employees, but also to an employee’s spouse and dependents, if they are covered by the employer’s group health insurance plan. Each chapter explains whom the law protects under the heading “Covered Workers.”

Do All of the Provisions Apply?

Some laws have provisions that apply only to certain workers and/or certain employers. For example, the provisions of the Fair Labor Standards Act that require employers to pay overtime and minimum wages don’t apply to certain types of employees, including certain computer specialists, seamen, and criminal investigators. Similarly, only employers with at least four employees are subject to the antidiscrimination provision of the Immigration Reform and Control Act (IRCA), but all employers—regardless of size—have to comply with IRCA’s verification provision, which requires employers to verify that their employees are legally authorized to work in the United States.

You can find this additional coverage information within the discussion of each provision of the law, under the headings “Covered Employers” and/or “Covered Workers.”

Is Your Situation Covered?

Each law covers a limited spectrum of employment issues and may not extend to the problem or question you’re facing. We’ve included two charts below to help you figure out which chapters to review. The first, “What Each Law Covers,” gives a very brief summary of the law. The second, “Laws That Apply to Common Employment Situations,” lets you know which aspects of the employment relationship are covered by each law. Once you decide which laws might apply, you’ll need to read the sections called “What’s Prohibited” and “What’s Required” in the chapters covering those laws to find out whether your particular situation is addressed.

For example, if you have a question about discrimination, you’ll see that several laws prohibit discrimination in employment. You’ll also see that these laws prohibit different types of discrimination—for instance, the Civil Rights Act of 1866 prohibits race discrimination, while the Equal Pay Act prohibits gender-based wage discrimination. To find out precisely what each law requires and prohibits, turn to the appropriate chapters.

In addition, some laws make exceptions for certain situations in which employers are not required to comply with the law. You can find this information in the “Exceptions” section of each chapter. For example, although the Worker Adjustment and Retraining Notification Act (WARN) generally requires certain employers to give employees advance notice of a layoff, employers don’t have to give notice if the layoff results from the closing of a temporary facility.

Which State and Local Laws Apply

Even if you follow every applicable federal employment law to the letter, your company could still be violating other legal obligations to its employees. The federal government isn’t alone in regulating the employment relationship—state and local governments often adopt their own employment laws as well. If your company and situation are covered by more than one law, you must follow the law that is the most beneficial to the employee in a particular situation.

This book will help you get started in figuring out which state laws might apply. At the end of many chapters, you’ll find charts summarizing the laws of the 50 states and the District of Columbia on the same topic. For example, at the end of the chapter on the FLSA, you’ll find charts on state minimum wage, overtime, and meal and rest break laws. However, these charts may not provide the details you need. In that case, you should contact your state’s labor or fair employment practices department (you can find contact information in Appendix A), consult a resource on the employment laws of your state, or talk to a local employment lawyer.

To find out whether local laws might come into play, you’ll have to find out what your city or county requires. Some local governments post their laws (often called “ordinances”) or information for local employers on their websites; you can find links to many city and county websites at www.statelocalgov.net. You can also find out what local laws require by talking to a local employment attorney.

State and local laws can be quite similar to federal employment laws: They cover similar topics, apply to only certain employers (often those with a minimum number of employees), and protect only certain types of employees. However, state and local laws often provide workers with more benefits and apply to a wider set of employers.

 

What Each Law Covers

Law

Summary

ADEA

Age Discrimination in Employment Act: prohibits employers from discriminating against employees who are 40 and older

ADA

Americans with Disabilities Act: prohibits discrimination against qualified employees with disabilities; requires employers to make reasonable accommodations for employees and applicants with disabilities

COBRA

Consolidated Omnibus Budget Reconciliation Act: requires employers to provide continued group health insurance coverage for up to 36 months to employees (and possibly their spouses and dependents) who would otherwise lose coverage

EPPA

Employee Polygraph Protection Act: prohibits employers from requiring or asking employees or applicants to take a polygraph test in most circumstances

EPA

Equal Pay Act: requires employers to give male and female employees equal pay for doing equal work

FCRA

Fair Credit Reporting Act: requires employers to provide notice and get consent before getting a credit report or other types of background or investigative reports on employees or applicants; requires employers to give certain information to employees or applicants before taking negative action based on a report; establishes standards employers must follow to destroy consumer records

FLSA

Fair Labor Standards Act: establishes the minimum wage; determines what constitutes work time for purposes of calculating pay; requires overtime pay for certain employees; restricts child labor

FMLA

Family and Medical Leave Act: entitles eligible employees to take up to 12 weeks of unpaid leave per year, with continued health benefits, to bond with a new child, to care for a family member with a serious health condition, for their own serious health condition, or for a qualified exigency due to a family member’s call to active duty; family members of servicemembers who suffer a serious injury or illness may take up to 26 weeks of leave in a single 12-month period

GINA

Genetic Information Nondiscrimination Act: prohibits employers from making employment decisions based on genetic information or requiring employees to provide genetic information; requires employers to keep employees’ genetic information confidential

IRCA

Immigration Reform and Control Act: prohibits discrimination on the basis of citizenship and national origin in every aspect of employment; requires employers to verify that employees are authorized to work in the United States and keep records to that effect

NLRA

National Labor Relations Act: regulates the relationship of employers and unions; prohibits employers and unions from engaging in unfair labor practices; protects employees who engage in concerted activities to improve working terms and conditions, whether the workplace is unionized or not

OSH Act

Occupational Safety and Health Act: requires employers to comply with workplace safety and health standards

OWBPA

Older Workers Benefit Protection Act: prohibits age discrimination in the provision of benefits for employees 40 and older; explains the criteria to be used in determining whether equal benefits have been provided; requires employers to include particular language in a waiver of an employee’s right to sue for age discrimination

PRWORA

Personal Responsibility and Work Opportunity Reconciliation Act: requires employers to report new hires to a state registry, which uses the information to enforce child support obligations

PDA

Pregnancy Discrimination Act: prohibits discrimination on the basis of pregnancy or childbirth in every aspect of employment; requires employers to treat pregnant women who are temporarily unable to work the same way they treat workers who are temporarily disabled for other reasons

SOX

Sarbanes-Oxley Act of 2002: prohibits employers from retaliating against employees who complain of shareholder fraud; requires companies to establish procedures allowing employees to submit anonymous complaints about accounting and auditing practices; requires companies to establish procedures for taking, handling, and retaining such complaints

Section 1981

Section 1981 of the Civil Rights Act of 1866: prohibits race discrimination in the making or enforcement of contracts, which includes every aspect of the employment relationship

Title VII

Title VII of the Civil Rights Act of 1964: prohibits discrimination on the basis of race, color, national origin, religion, and sex in every aspect of employment

USERRA

Uniformed Services Employment and Reemployment Rights Act: prohibits discrimination against applicants and employees who serve in the armed services; requires employers to reinstate employees who take up to five years off to serve in the armed services and to restore their benefits; prohibits employers from firing reinstated employees, except for cause, for up to one year after they return

WARN

Worker Adjustment and Retraining Notification Act: requires employers to give 60 days’ notice to employees who will lose their jobs through large layoffs or plant closings, with limited exceptions

 

 

Laws That Apply to Common Employment Situations*

Law

Hiring

Background Checks

Testing

First-Day Paperwork

Benefits

Compensation

Hours

Health and Safety

Investigations

Discrimination/Harassment

Leave/Time Off

Unions/Organizing

Whistleblowing

Layoffs

Terminations

ADEA

n

n

n

 

n

n

n

 

n

n

n

 

 

n

n

ADA

n

n

n

 

n

n

n

n

n

n

n

 

 

n

n

COBRA

 

 

 

 

n

 

 

 

 

 

 

 

 

n

n

EPPA

n

 

n

 

 

 

 

 

n

 

 

 

 

 

n

EPA

 

 

 

 

n

n

 

 

 

n

 

 

 

 

 

FCRA

n

n

 

 

 

 

 

 

 n

 

 

 

 

 

n

FLSA

 

 

 

 

 

n

n

n

 

 

n

 

 

 

 

FMLA

 

 

 

 

n

 

n

n

 

 

n

 

 

n

n

GINA

n

n

n

 

n

n

n

n

n

n

n

 

 

n

n

IRCA

n

n

n

n

n

n

n

 

n

n

n

 

 

n

n

NLRA

 

 

 

 

n

n

n

 

 

 

n

n

 

n

n

OSHA

 

 

 

 

 

 

 

n

n

 

 

 

n

 

 

OWBPA

 

 

 

 

n

n

 

 

 

n

 

 

 

n

n

PRWORA

 

 

 

n

 

 

 

 

 

 

 

 

 

 

 

PDA

n

n

n

 

n

n

n

n

n

n

n

 

 

n

n

SOX

 

 

 

 

 

 

 

 

n

n

 

 

n

 

n

Sec. 1981

n

n

n

 

n

n

n

 

n

n

n

 

 

n

n

Title VII

n

n

n

 

n

n

n

 

n

n

n

 

 

n

n

USERRA

n

n

n

 

n

n

n

 

n

n

n

 

 

n

n

WARN

 

 

 

 

 

 

 

 

 

 

 

 

 

n

 

* You’ll see that most of the antidiscrimination laws appear with nearly every issue. Because these laws prohibit discrimination in every aspect of employment, employers could violate them by undertaking any common employment practice with the intent to discriminate. For example, let’s say an employer required only applicants who have served in the military to take a psychological test, based on the hiring manager’s belief that such applicants are more likely to be mentally unstable. This would violate USERRA’s ban on discrimination against those who have served in the military, even though USERRA doesn’t explicitly address the issue of testing.

 

Putting It All Together

Here are a couple of examples to illustrate how to figure out which laws your company has to follow.

Example 1: The only manager of a four-employee graphic design company in Berkeley, California, wants to know what the company’s obligations are to applicants with disabilities. The federal Americans with Disabilities Act governs this issue, but it applies to private employers only when they have at least 15 employees. California also has an antidiscrimination law that prohibits disability discrimination, but it applies to employers only when they have at least five employees. However, the city of Berkeley prohibits all companies that contract with the city from discriminating on the basis of disability. Therefore, if the company wins a bid to redesign the city’s website, it will have to comply with this municipal law.

Example 2: A national restaurant chain is considering expanding to New Mexico. Its HR director does some research and learns that New Mexico’s minimum wage is $7.50 an hour. Because this is higher than the current federal minimum wage ($7.25 an hour), the chain will have to pay its workers at least the higher state amount. But if the chain decides to open in Santa Fe, it will have to pay workers at least $10.84 an hour, because that city has adopted a living wage law that applies to all employers that are required to have a business license or registration from the city. Both federal and New Mexico law require employers to pay tipped workers a wage of at least $2.13 an hour, in addition to tips. However, Santa Fe requires employers to pay tipped employees a base wage of at least $3.25 per hour. So, the restaurant will have to pay its tipped workers in Santa Fe at least $3.25 per hour, and the employee’s total pay—including tips—must add up to at least the city’s minimum wage of $10.84.

As you can see, things can get confusing if your company is covered by two or more laws that impose different requirements or seem to contradict each other. If you find yourself in this position, you may need some help figuring out what to do. This is a good time to consult with an employment lawyer.

Basic Compliance Tools

This book will help you understand which federal employment laws your company must follow and what those laws mean. However, to stay out of legal trouble, your company must do more than simply follow the letter of the law. It will also have to adopt some practical strategies to make sure that it meets its legal obligations. These compliance tools are not strictly “required” by the laws covered in this book, but a company that wants to avoid legal problems should consider them standard operating procedures.

This section briefly explains a handful of basic strategies every company should follow, but it is only an introduction to these important topics. The ins and outs of creating an effective compliance program are well beyond the scope of this book. However, Nolo has plenty of detailed resources that will help you design and implement procedures for compliance; see “If You Need More Information,” below.

Lawyers

Even the most conscientious HR professional occasionally needs help from a lawyer. Although you can handle many employment issues on your own, some are particularly tricky and require some legal expertise. As you read this book, you’ll see that we sometimes advise you to see a lawyer if you need more information on a difficult topic. And with good reason: Although lawyers don’t come cheap, your company can save money by paying a lawyer for advice and information that would be very time-consuming and difficult to research on your own.

There are no hard and fast rules that determine when you should consult with a lawyer. You’ll have to decide when it’s time to get some expert help based on a number of factors, including your own comfort level, how important the issue is, how many employees are affected, whether your company is facing significant legal exposure, and your company’s budget. However, as a general rule, it’s better to consult with a lawyer sooner rather than later in any potentially difficult situation.

You can use a lawyer for a variety of tasks, including:

Document drafting or review. A lawyer can create or edit documents you use over and over again, such as employment contracts, employee notice forms, waivers, your employee handbook, and other written policies.

Advice on employment decisions. Of course, your company would quickly go out of business if it consulted a lawyer every time an employee was hired or disciplined, but there are times when a lawyer’s advice will be very valuable. If, for example, you are considering firing a worker who is on FMLA leave or has recently complained of sexual harassment, a lawyer can help you make sure that you have adequate legal support for your decision.

Help understanding your legal obligations. As noted above, companies must follow whichever law—federal, state, or local—provides the most benefits for workers. A lawyer can help you untangle these obligations and assist you in figuring out your responsibilities when several laws overlap.

Representation in legal or administrative proceedings. If an employee files a complaint with an administrative agency or a lawsuit, your company should consult with a lawyer right away. Good legal advice at the outset can mean the difference between winning and losing the case.

Training

Training is a great way to reduce your company’s legal exposure and give your company an opportunity to deal with potential problems early on, before they have a chance to escalate. Training is a vital component of a company’s efforts to combat harassment and discrimination, for example. In this type of training, employees learn about harassment and discrimination and how to report possible misconduct to the appropriate people. Managers should also be trained to recognize harassment and discrimination and take appropriate action if they learn that harassment or discrimination might be taking place. You can learn more about discrimination and harassment training from the Training Institute of the Equal Employment Opportunity Commission, www.eeotraining.eeoc.gov.

As a legal matter, training can help limit your company’s liability if it faces a harassment lawsuit. Companies that take reasonable care to prevent and correct harassment—by adopting an antiharassment policy, training managers in their responsibilities, investigating complaints effectively, and taking swift action if harassment occurs—have a potential legal defense to certain harassment claims.

You can also use training to help your company maintain a safe and healthy workplace (a requirement of the OSH Act). In fact, the OSH Act requires companies in certain industries to provide specific types of training to their employees. Safety training might include information on how to use particular tools or equipment, ergonomics, working with hazardous materials, and reporting possible unsafe conditions. You can learn more about safety training from OSHA’s Directorate of Training and Education Training Resources, www.osha.gov/dte.

Policies

Your company’s written policies or employee handbook can make or break your efforts to comply with the law and can help limit your company’s legal exposure. By clearly communicating what it expects from its employees and managers, a company can nip certain legal problems in the bud—or at least give itself an opportunity to resolve problems when they first arise. If everyone at your company understands, for example, what retaliation is and that the company will not tolerate it, managers will be less likely to retaliate against employees who raise concerns or complaints, and employees will be more likely to report retaliation right away, before their relationship with the company has been damaged beyond repair.

When writing or updating your company’s policies, you must choose your words with care: At the most basic level, your company’s policies must not contradict what the law requires or allows. For example, if your company’s employee handbook says that employees may take only four weeks off per calendar year, strict enforcement of that policy could well violate several federal employment laws, including the Family and Medical Leave Act, the Uniformed Services Employment and Reemployment Rights Act, the Pregnancy Discrimination Act, and the Americans with Disabilities Act. If your company’s policies lead employees to believe that they aren’t entitled to the rights provided by these laws, the company could face major legal problems.

As you’ll learn in later chapters, a company’s policies sometimes also deter­mine its legal responsibilities to employees. In some situations, a company may take certain actions only if its policies provide for it, even though the actions are otherwise legally allowed. For example, a company is legally allowed to pay less than the minimum wage to employees who earn tips (known as taking a “tip credit”) under the Fair Labor Standards Act, but only if the company clearly informs employees that it will do so. To take full advantage of its legal rights, your company must make sure that its policies meet these standards.

Some policies can also be used as a legal defense to claims of harassment and discrimination. As noted above under “Training,” companies that have antiharassment and antidiscrimination policies and take quick action to investigate and resolve complaints may be able to avoid liability for certain harassment and discrimination claims. Every company should have written policies prohibiting harassment and discrimination and outlining the steps the company will take if an employee comes forward with a complaint.

Companies that don’t have written policies, or don’t review their policies periodically to make sure that they are legally valid and up to date, are placing themselves at legal risk.

Responding to Legal Violations

If you learn of a possible legal violation—for example, hazardous working conditions, discriminatory statements by a supervisor, or a manager’s refusal to allow an eligible employee to take FMLA leave—you must take action right away. You may need to investigate the situation first, to find out what happened and who is responsible. Once you know that your company has a problem, however, you should step in quickly to resolve it.

There are several good reasons for taking action to correct legal violations. Perhaps most important, taking action will show employees that the company cares about their well-being and wants to do the right thing. This will help build the type of loyalty and positive feelings that can provide a strong deterrent to lawsuits. Putting a stop to illegal behavior will also limit the amount of money an employee can recover (called “damages”), if he or she decides to take legal action against the company. And dealing quickly with troublemakers will send the strong message that your company doesn’t tolerate misconduct, which will help prevent similar problems in the future.

Outsourcing

A few of the laws in this book—particularly those that deal with benefit plans, such as COBRA—can be difficult to understand and administer. That’s why many companies hire outside service providers to handle their obligations under these laws. Outsourcing these responsibilities is a great way to maximize efficiency: Rather than spending weeks of your time trying to understand what these laws require, you can hire a company that specializes in compliance to take care of everything for you.

But use caution when hiring a third party to discharge your company’s obligations. Generally, your company will remain legally liable for any actions taken by an outside provider. This means that an employee can still sue your company and collect damages (although, your company may be able to go after the provider to recoup your costs). This is why you must choose service providers very carefully; create a clear, written agreement about what you expect the provider to do for your company; monitor the provider’s performance; and periodically review your outside contracts to make sure that your company is getting what it pays for.

Among the factors your company should consider when hiring an outside service provider are:

The services to be provided. Is your company looking to outsource its entire HR function or only the administration of its pension plan or benefits programs?

Performance benchmarks. How will you measure whether the provider is meeting its obligations to your company?

Pricing. What will your company pay, and how will the price be calculated (for example, per employee, per task, or a set monthly or annual rate)?

Control. Does your company want to have some input on the tasks you are outsourcing, or will the provider be solely responsible for those issues?

Liability. Does using an outside provider create additional obligations or legal exposure? (For example, an employer’s obligations under the Fair Credit Reporting Act are triggered when it hires another party to perform credit or background checks on applicants and employees.) If an employee or applicant sues, will the provider indemnify (repay) your company?

Handling problems. How will you deal with disagreements or other problems in your company’s relationship with the provider, and under what circumstances can either of you end the arrangement?

By carefully considering these issues up front, and getting some legal assistance in drafting and reviewing provider contracts, you can ensure that your company gets the most but of outsourcing administrative functions.

Documentation and Record Keeping

As you’ll see, many of the laws we cover require companies to keep certain documents—for example, payroll records, job applications, or forms signed by employees. In addition to complying with these legal requirements, your company should carefully document in writing all important decisions and required actions relating to its employees. Even if this type of documentation is not specifically required by the law, it’s the best way to prove that you complied with the law, if necessary.

For example, the Fair Credit Reporting Act requires covered employers to provide written notice and obtain an applicant’s or employee’s consent before ordering a consumer report on that person. Because the law doesn’t specifically require employers to keep copies of these records, an employer is technically free to shred these documents. But what if the employee claims never to have consented to the report? If the employer saves these records, it will have a written consent signed by the employee. If not, it will have no written proof that it complied with the law.

Companies should also carefully document employment decisions. For example, when a manager fires, promotes, disciplines, gives a pay raise to, or transfers an employee, or otherwise changes an employee’s status or situation, he or she should fully document the reasons for the action. This will help the company if the employee later complains that the action was taken for illegal reasons (for example, discrimination or retaliation). The manager will have an easier time remembering the details and explaining the basis for the decision. The company will have a contemporaneous record (that is, one made at the time of the decision) of what it did and why. And, ultimately, documents will help the company persuade a government agency, jury, or judge that it acted properly.

As you will see, some federal laws require employers to keep records only for a certain period of time (for example, one or two years). However, you may want to retain these documents for longer than required by the federal law. For example, a state law may allow an employee to bring a lawsuit three years after a violation of state antidiscrimination laws. If you have thrown out relevant documents after only one or two years, you will have a difficult time defending against the claim. To find out how long you should keep specific employment records, consult with an employment lawyer in your area.

If You Need More Information

You may need more information than this book provides. You may have to figure out exactly how your company can comply with apparently conflicting federal, state, and local laws on the same topic. You may need help with the practical aspects of compliance, such as how to conduct an investigation of sexual harassment or develop an appropriate procedure for taking anonymous complaints of shareholder fraud under Sarbanes-Oxley. Or, you may need help developing employment contracts or an employee handbook. This section will direct you to some other resources that might help.

Government Agencies

Your first stop should be the federal or state agency that administers and enforces the law you’re interested in. At the end of our discussion of each law, we give you a list of resources available from the federal agency that interprets and enforces the law. But these lists aren’t exhaustive—some of these agencies have dozens of fact sheets, guidance memoranda, and special bulletins for employers and small businesses that can help you figure out the law’s requirements. These agencies also have staff members available to help answer your questions or point you toward the information you need.

If your question involves state law, you can start your research by contacting the state agency that enforces the law. For questions about employment discrimination, contact your state fair employment practices agency. For other employment-related questions, contact your state labor department. Appendix A includes contact information for the federal agencies that enforce and interpret the laws covered in this book, as well as the fair employment practices agency and labor department of each of the 50 states and the District of Columbia.

Nolo Resources

Nolo provides a number of resources on employment law, policies and procedures, and other issues of special interest to the HR profession. The Nolo.com website has lots of information on HR topics and offers written materials on a variety of subjects. See Appendix B for a list of resources you might find helpful.

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