Employment law includes thousands of major federal and state statutes, administrative regulations, and judicial decisions, all concerning the employer/employee relationship. Here’s a breakdown of some of the significant federal employment-related statutes you need to know as an employer.
1963 in America saw a major push for institutional changes that would bring about a society with equal outcomes. Following the famous March on Washington, sit-ins and both violent and non-violent protesting, the Civil Rights Act came into effect and called for the end of discrimination in all its forms. The act targets segregation in education, in the workplace, in the public sphere, and politically. So, what did this mean for business owners and employers?
Title VII is a result of this change and is a federal statute that bans private employers from discriminating based on based on race, color, religion, sex, and national origin in the workplace. If a person were to participate in a Title VII proceeding or someone who actively opposes workplace discrimination, the act would protect against retaliation by an employer.
Not only does Title VII protect against discrimination based on skin color, it also holds employers liable for discrimination against employees based on certain ethnic characteristics. If harassment is persistent and so severe it creates a toxic work environment, employers can also become liable for racial harassment.
Reverse race discrimination is another form of discrimination protected under Title VII. Reverse race discrimination involves discrimination against employees belonging to groups historically favored over other minority groups. Similarly, Title VII prohibits discrimination based on national origin and citizenship.
Religious practices are also protected under this law. Title VII prevents discrimination on the basis of religion and requires an employer to provide a space for employee(s) to freely practice their religion. The only exception to this would be if the employer can prove that the religious accommodation would result in an undue hardship and negatively impact the business.
Unwanted sexual advances, soliciting sexual favors, and other sexually charged physical and verbal behaviors fall under the umbrella of sexual harassment – another form of discrimination recognized by courts.
Two types of harassment exist under this sex- based discrimination: “Quid pro quo” and a hostile work environment.
Under Title IX, “Quid pro quo,” arises when an employee experiences an injurious action as a result of their refusal to submit to a higher up’s sexual advances or demands. Similarly, a hostile work environment is any kind of unwelcome behavior occurring consistently, purposefully, and pervasively.
For sexual harassment to be upheld in the court, both the alleged victim and a reasonable person would need to perceive and find the accused conduct hostile or abusive.
Two types of disparate discriminatory practices exist: disparate treatment and disparate impact. Disparate treatment is viewed as intentional discrimination while disparate impact is commonly seen as unintentional discrimination. A situation where an employer would knowingly test based on strength or height that may target men over women for a job is seen as disparate treatment, where disparate impact could be seen as an employer’s policy or rule unknowingly affecting a specific group of people.
The Pregnancy Discrimination Act of 1978 (PDA) prohibits discrimination based on pregnancy in terms of employment. This extends to all aspects of employment like hiring and firing, pay, job assignments, promotions, layoffs, training, benefits, and more. Under this section, employers should not treat pregnant persons or workers with pregnancy- related conditions more favorably due to their condition.
Age Discrimination in Employment Act (ADEA)
Passed in 1967, The Age Discrimination in Employment Act prohibits employment discrimination against any persons aged 40 years or older. Employment discrimination of this nature is seen as employers making decisions based on a person’s age like hiring, firing, and promoting.
A court can recognize if discrimination is present if a plaintiff can establish a claim for age discrimination with either direct or indirect evidence that confirms the plaintiff is 40 years of age or older, was performing their job competently, suffered a negative employment action, and was replaced by a younger employee.
In 1990, Congress modified the ADEA and added the Older Workers Benefit Protection Act (OWBPA) clarifying the terms of what is deemed age discrimination. The OWBPA is a federal law mandating employers offer workers 40 years or older benefits that are equal to the benefits offered to younger workers.
To ensure older and vulnerable workers are protected from age discrimination and not unfairly laid off, the OWBPA mandates older employees be made aware of employee benefits like severance pay and requires employers to inform them of their rights, so they knowingly and voluntarily make an informed choice on signing a waiver. This protects this group by ensuring they aren’t being treated unfairly by being laid off from work and don’t experience discrimination based on their age.
A waiver is only considered voluntary and knowing if the employee has at least 21 days to consider the deal. A waiver is also considered knowing and voluntary if the employee has a period of at least 7 days after the presenting of the waiver to revoke the agreement. An employer may request an employee to waive rights or a claim with the promise of an exit incentive or other employment termination programs, but they must be given a period of 45 days to accept or decline the agreement.
Americans With Disabilities Act (ADA)
Enacted in 1990, the Americans with Disabilities Act prohibits discrimination of disabled individuals in all areas of public life including: jobs, schools, public transportation, and both public and private places open to the public. The aim of the law ensures people with disabilities obtain the same rights and opportunities as others. The law guarantees equal opportunity for disabled individuals to acquire the same access and opportunities as everyone else in terms of public accommodations, employment opportunities, transportation, state and local government services, and telecommunications.
The ADA includes five titles, broken down, and that cater to different areas of public life. Title I relates to private and state government employers that have 15 or more hired employees. This would make it unlawful to discriminate against a disabled person qualified to work.
2008 saw the Americans with Disabilities Act Amendments Act (ADAAA) signed into law under President George W. Bush. This amendment highlights how the definition of disability should be viewed as a broad term determined by the ADA and that can include many different individuals.
The formal definition of “disability” is commonly interpreted as an individual with a physical or mental impairment that impairs their movements, senses, or activities.
The ADAAA challenged the definition of “disability” by rejecting former decisions made by the Supreme Court and some of EEOC’s ADA regulations. The point of this was to broaden the definition of a disability, so individuals with potential disabilities can have an easier time seeking protection under the ADA.
An employer has an obligation under the ADA to provide reasonable accommodations for disabled individuals unless it would result in an undue hardship. Reasonable accommodations involve a modification or an adjustment to a job, the work environment, or standard workplace processes like hiring. Some examples of job accommodations include: any physical changes like modifications or installations to places, providing accessible and helpful technology, access to different forms of communication like Braille or closed captioning, and policy enhancements that allow people to complete their work at alternate times or potentially locations.
Fair Labor Standards Act (FLSA)
The Fair Labor Standards Act ensures workers get paid a minimum wage as well as overtime pay, establishes recordkeeping, and regulates child labor standards in all levels of government including the public and private sector.
The FLSA mandates employers to pay employees for all hours worked. Employers are required to make, keep, and store certain records on employees and exempt employees concerning their pay and their hours worked.
Under the FLSA, an exempt status can only apply if an employee’s job duties and salary meet all of the requirements under established regulations. An employer is also not obligated to pay overtime for exempt employees. According to the FLSA, exempt status falls under the following categories: professional, administrative, executive, outside sales, and computer-related. Generally, if any of those categories can be applied to an employee, earns a salary, and obtains a minimum of $684 a week, then they can be considered exempt.
In addition to understanding the FLSA, it’s important for employers to educate themselves on local wage and hour laws as they differ from state-to-state.
The Equal Pay Act of 1963 (EPA) prohibits sex-based wage discrimination between both men and women who work in the same establishment that perform jobs with the same required skill-set, effort, responsibility, and that are performed under the same working conditions.
In order for an employee to establish a prima facie case under the EPA, they would need to establish wage discrimination exists by providing evidence that he or she was not paid fairly while performing the same tasks and duties under the same conditions as their co-worker of a different gender.
Once a case like this is presented, an employer would need to prove the claim of unequal pay was due to other factors like seniority, a merit system, or a differential based on something other than gender.
Worker Adjustment and Retraining Notification Act (WARN Act)
Put into effect in 1988, the Worker Adjustment and Retraining Notification Act ensures employers having 100 or more employees working in an establishment have advanced notice of plant closures and / or mass layoffs within a 60-day period. The U.S. The Department of Labor helps employees understand their rights and responsibilities under WARN by providing compliance assistance materials.
The purpose of WARN is to give affected employees time to transition and adjust to unemployment as well as provide them time to find alternative employment. Workers on temporary leave or who are on a temporary layoff and who have reasonable expectation of recall; meaning, they know they are expected to be recalled to their employment at some point, are still considered employees.
Occupational Safety and Health Administration (OSHA)
Passed in 1970, Congress set up the Occupational Safety and Health Administration Act to ensure the health, safety, and protection of workers. It’s an agency of the U.S. Department of Labor with the responsibility to maintain worker safety and health protection. An employer under OSHA is obligated to provide a work environment for employees free from hazards that are likely to cause serious injury or death. OSHA also covers all 50 States within the United States including its territories and jurisdictions of federal authority.
OSHA’s health and safety standards are broad and include many areas of the workplace like machines and equipment, workplace practices, operations, and environmental conditions. Because OSHA covers so many categories, it’s generally classified into four broad categories like the general industry that includes institutions like: manufacturing, the service sector, healthcare, government agencies, and academia. It also includes construction, maritime and longshoring, and agricultural industries as well.
OSHA mandates workplace inspections to ensure its standards are being enforced by employers. Every establishment covered by OSHA is subject to these required inspections. An employer cannot retaliate against an employee for exercising their rights under OSHA.
Family Medical Leave Act (FMLA)
Passed in 1993, the Family Medical Leave Act requires covered employers to provide their employees with unpaid, protected leave of their job for specified family and / or medical reasons. The act provides up to 12 weeks of unpaid, job-protected leave over a 12-month period. It applies to all public and private employers that have 50 or more hired employees within a 75-mile radius of employment. This only extends to eligible employees to cover family needs or medical needs, and employers have to follow very specific notice requirements if an employee were to use FMLA.
FMLA is intended to provide balance between the workplace and the needs of the family. It exists to provide stability and economic security for families, to promote national interests that preserve the unity of the family.
Generally, the FMLA mandates employers to give employees up to 12 weeks of unpaid leave per year due to the following reasons: a serious health condition, family health conditions that require the employee to take leave, leave due to a newly born child, adopted, or foster-care child.
An employee qualifies for FMLA leave when they prove to be employed by the employer for at least 12 months and has worked at least 1,250 hours within the 12-month time-frame immediately following the leave request. If an employee requests leave, they have to give their employer sufficient notice of leave. An employer is allowed to ask an employee to submit medical proof of the serious health-condition for which FMLA is requested.
An employer must notify the employee of their eligibility for FMLA leave. When an employee is capable of coming back into the workplace, employers are required to reinstate the employee who accepts FMLA leave back to their original position or a position that is equivalent to their original position.
Under FMLA leave, an employee’s healthcare coverage must be maintained by the employer.
Employers cannot retaliate against employees who are using or seeking to use FMLA leave. Employees cannot waive their rights under FMLA and employers similarly cannot convince employees to waive their rights.
National Labor Relations Act (NLRA)
The National Labor Relations Act of 1935 provides employees at private-sector workplaces the opportunity to better working conditions, enter into trade-unions, engage in collective bargaining, participate in strikes, and to seek better representation without the fear of retaliation.
The independent federal agency called the National Labor Relations Board (NLRB), administers and enforces the NLRA. The NLRA’s definition of employee does not include agricultural laborers, domestic servants, individuals employed by a parent or spouse, independent contractors, supervisors, any government employee, and individuals employed by an employer under the Railway Labor Act. This definition looks different from the general definition of employee that relates to any individual employed by an employer that relates to or affects interstate commerce.
The NLRA specifically forbids employers from interfering, restraining, or coercing employees from exercising their rights under the NLRA.
The laws mentioned in this article are just a small portion of the many federal statutes that control employment law. If you’re facing any employment-related issues, we strongly recommend you hire the help of a business attorney that specializes in employment law. Contact us for a consultation.