Most employers are subject to compliance with various federal employment laws. Furthermore, many states have similar laws which “mirror” federal employment laws. Therefore, when an employee or former employee formally alleges non-compliance discrimination, the charge is generally taken on a dual filing basis by both the federal and state agencies. Often, the federal agency responsible for enforcing the law contracts with the appropriate state agency to do the initial investigation and prepare a final report with findings of fact conclusions of law. Many employers are unfamiliar with the intricate details of employment laws and become knowledgeable only when a charging party files a claim and they have to prepare for litigation.
Our goal is to briefly describe some of the major laws affecting employment for the benefit of our clients unfamiliar with them. In addition to the statutes described below, there are other federal laws involving employer compliance, including U.S.E.R.R.A., discrimination against members of the armed forces, which are not covered here. Please contact us for more information. The majority of our clients, however, are subject to mandatory compliance with respect to the following statutes:
• The Fair Labor Standards Act (FLSA).
• The Americans with Disabilities Act (ADA).
• The Family and Medical Leave Act (FMLA).
• Title VII of the 1964 Civil Rights Act (Title VII).
The Fair Labor Standards Act (FLSA) is the “wage-and-hour” law enacted in 1938, and since amended many times. It establishes minimum wage, overtime pay, recordkeeping and youth employment standards and covers employers with more than $500,000 in annual dollar volume. The statute defines when employees are to be compensated on an hourly (non-exempt) or a salary (exempt) basis and when overtime pay is due. It is enforced by the U.S. Department of Labor’s Wage and Hour Division (DOL). The law requires employers to compensate non-exempt employees if they: “suffer or be permitted” to perform work. That means employees must be paid if they perform work, even if the work was not authorized. Compensation problems often occur in our modern electronic world when non-exempt employees work at home on computers or phones during off hours. Employees may believe that they are just planning ahead and not working, but they need to be compensated even if the work was unauthorized and unknown by the employer. This work often results in overtime pay. Employers also need to understand what constitutes an “unpaid work break” vs. a “paid work break”. Employee handbooks should articulate this information in a clear and prominent manner. If the DOL finds a claimant’s allegations valid, they will tabulate the total unpaid overtime hours for up to four prior years and the employer must immediately pay the claimant(s) back wages in a single payment. If the DOL considers the omission substantially egregious, additional fines can apply, including treble damages to the claimant(s). Employers should immediately analyze their existing pay and overtime policies for DOL (and the employer’s State) compliance.
The American’s with Disabilities Act (ADA) of 1990 covers employers with 15 or more employees and prohibits discrimination in all employment practices, terms, conditions and privileges of employment against a qualified individual with a disability. It is administered and enforced by the U.S. Equal Employment Opportunity Commission (EEOC). It requires employers to provide reasonable accommodation to qualified employees and job applicants with a disability. Individuals, however, must be able to perform the essential functions of the job with or without a reasonable accommodation. “Disability” is now broadly interpreted by the EEOC and employers should initiate an “Interactive Process” when a job applicant or employee discloses a disability and requests the need for accommodation. The ADA was amended in 2008, which broadened the definition of disability and it now behooves an employer to concentrate on accommodating qualified employees and job applicants requesting accommodation rather than challenging the individual’s disability.
The Family and Medical Leave Act (FMLA) final rule was promulgated in 1995 and covers employers if they employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year at one or more worksites within 75 miles. It is administrated and enforced by the U.S. Department of Labor. It requires covered employers to extend unpaid leave to qualified employees when they need the leave for a personal medical condition for themselves or certain family members. FLMA can also be used by qualified employees for certain situations when a covered family member is a member serving in the military. Employers should have a centralized employee in their company responsible for administrating this statute and knowledgeable of its highly technical components.
Title VII of the 1964 Civil Rights Act (Title VII) prohibits an employer to discriminate against hiring, promoting or dismissing an employee based on race, color, religion, sex and national origin. This statute is administrated and enforced by the U.S. Equal Employment Opportunity Office (EEOC). It covers employers with 15 or more employees. Sexual harassment, one of the most frequently charged and a costly source of litigated claims is a form of gender (sex) discrimination. Employers should publish and prominently post a zero tolerance policy and make sure it is widely disseminated to all employees, job applicants and vendors. It should be consistently enforced and allegations should be immediately investigated. This will provide an “affirmative defense” for the employer. Please also note that retaliation and age bias claims are statistically among the most costly Title VII claims.
The best way to defend against charges of discrimination and wage-and-hour complaints is to be fully prepared by having policies in place and having them well communicated to job applicants and employees. Employees should be able to confidentially report these complaints and have them impartially investigated by internal trained staff. Overall, discrimination and wage-and-hour back pay claims reported to federal agencies have increased during the past five years and these agencies have hired and trained additional investigators. Violators are more certain to be charged than ever before. If you have questions, please contact Bill Hansel, V.P. Professional Services, Cameron Bray Ltd. (520-318-5600) or send an email to firstname.lastname@example.org.
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