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Employment Law Basics

Introduction to Employment Law Basics

New and growing small businesses often need help identifying and understanding the specific U.S. Department of Labor (DOL) laws and regulations that apply to them. A variety of the Department’s compliance assistance resources can help in this regard, including the elaws FirstStep Employment Law Advisor and the Employment Law Guide, which describes 24 major laws enforced by DOL in plain, easy-to-understand language. These tools, and a variety of other compliance assistance materials, provide employers with the introductory information they need to develop wage, benefit, safety and health, and nondiscrimination policies for their business. All of this information can be obtained at www.dol.gov.

The Department of Labor (DOL) administers and enforces more than 180 federal laws. These mandates and the regulations that implement them cover many workplace activities.

The following is a brief description of some of DOL’s principal statutes most commonly applicable to businesses, job seekers, workers, retirees, contractors and grantees. This brief summary is intended to acquaint you with the major labor laws and not to offer a detailed exposition. For authoritative information on these laws, you should consult the statutes and regulations themselves; DOL’s compliance assistance Web site at www.dol.gov/compliance/

 

Federal Regulations on Employment Relationships

Wages & Hours

The Fair Labor Standards Act (FLSA) prescribes standards for wages and overtime pay, which affect most private and public employment. The act is administered by the Wage and Hour Division of the Employment Standards Administration (ESA). It requires employers to pay covered employees who are not otherwise exempt at least the federal minimum wage and overtime pay of one-and-one-half-times the regular rate of pay. For nonagricultural operations, it restricts the hours that children under age 16 can work and forbids the employment of children under age 18 in certain jobs deemed too dangerous.

The Wage and Hour Division also enforces the labor standards provisions of the Immigration and Nationality Act that apply to those authorized to work in the U.S. under certain nonimmigrant visa programs (H-1B, H-1B1, H-1C, H2A).

Workplace Safety & Health

The Occupational Safety and Health (OSH) Act is administered by the Occupational Safety and Health Administration (OSHA). Safety and health conditions in most private industries are regulated by OSHA or OSHA-approved state programs, which also cover public sector employers. Employers covered by the OSH Act must comply with the regulations and the safety and health standards promulgated by OSHA. Employers also have a general duty under the OSH Act to provide their employees with work and a workplace free from recognized, serious hazards. OSHA enforces the Act through workplace inspections and investigations. Compliance assistance and other cooperative programs are also available.

 

Workers’ Compensation

Many states require that all employers with one or more employees maintain workers’ compensation insurance. Workers’ compensation laws and programs are state-specific, and therefore vary from state to state. However, they all pay medical, rehabilitation, death and burial benefits and partial wage loss indemnification to employees who experience on-the-job injury or illness.

Workers’ compensation protects the employer as well as the employee. If the employer has coverage from a private insurer, state fund or is self-insured (the requirements vary among the states), its liability for on-the-job accidents is limited to the cost of providing the insurance. Claimants are limited to the statutory benefits provided by the insurer. The quid pro quo of workers’ compensation is that employers accept responsibility for workplace accidents as a cost of production and the employees forego their right to sue, and the possibility of a larger recovery, for certain and timely medical and wage loss benefits.

 

Go to www.dol.gov/compliance to see if your state requires that all employers carry Workers Compensation insurance.

 

Unemployment Insurance

While there is variation from state to state, most state unemployment laws are similar. Unemployment insurance typically covers wage-replacement benefits of two-thirds of the claimant’s pay up to a specified maximum (which varies greatly from state to state) for up to 26 weeks.

Under the Federal Unemployment Tax Act, the program is financed by a payroll tax on employers that is subject to experience rating. Funds are deposited with the federal government and part of the tax is allocated to Washington for administrative expenses and to pay for extended benefits during periods of high unemployment. Depending on current economic conditions the benefit amounts and length of eligibility may change.

Employee Benefit Security

The Employee Retirement Income Security Act (ERISA) regulates employers who offer pension or welfare benefit plans for their employees. Title I of ERISA is administered by the Employee Benefits Security Administration (EBSA) (formerly the Pension and Welfare Benefits Administration) and imposes a wide range of fiduciary, disclosure and reporting requirements on fiduciaries of pension and welfare benefit plans and on others having dealings with these plans. These provisions preempt many similar state laws. Under Title IV, certain employers and plan administrators must fund an insurance system to protect certain kinds of retirement benefits, with premiums paid to the federal government’s Pension Benefit Guaranty Corporation (PBGC). EBSA also administers reporting requirements for continuation of health-care provisions, required under the Comprehensive Omnibus Budget Reconciliation Act of 1985 (COBRA) and the health care portability requirements on group plans under the Health Insurance Portability and Accountability Act (HIPAA).

 

Employee Protection

Most labor and public safety laws and many environmental laws mandate whistleblower protections for employees who complain about violations of the law by their employers. Remedies can include job reinstatement and payment of back wages. The Occupational Safety and Health Administration enforces the whistleblower protections in most laws.

Below are general overviews of the specific employment laws that may apply to your operation.

Age Discrimination in Employment Act of 1967

The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA’s protections apply to both employees and job applicants. Under the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments and training.

It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying or participating in any way in an investigation, proceeding or litigation under the ADEA.

The ADEA applies to employers with 20 or more employees, including state and local governments. It also applies to employment agencies and labor organizations, as well as to the federal government. ADEA protections include: apprenticeship programs, job notices and advertisements, pre-employment inquiries and benefits,

 

Use this link to review the full text of the Act. http://www.eeoc.gov/laws/statutes/adea.cfm

 

Americans with Disabilities Act of 1990 (ADA)

Title I of the Americans with Disabilities Act (ADA) of 1990 prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training and other terms, conditions and privileges of employment. The ADA covers employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations.

 

An individual with a disability is a person who has a physical or mental impairment that substantially limits one or more major life activities; has a record of such impairment and is regarded as having such impairment.

A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question. An employer is required to make a reasonable accommodation to the known disability of a qualified applicant or employee if it would not impose an “undue hardship” on the operation of the employer’s business. An employer is not required to lower quality or production standards to make an accommodation, nor is an employer obligated to provide personal use items such as glasses or hearing aids.

 

Title I of the ADA also covers medical examinations and inquiries and those in recovery from drug and alcohol abuse.

 

Use this link to review the full text of the Act. http://www.eeoc.gov/laws/statutes/ada.cfm

 

Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1986

The Consolidated Omnibus Budget Reconciliation Act (COBRA) is a law that gives workers who lose their jobs, and thus their health benefits, the right to purchase group health coverage provided by the plan under certain circumstances. COBRA generally requires that group health plans sponsored by employers with 20 or more employees in the prior year offer employees and their families the opportunity for a temporary extension of health coverage (called continuation coverage) in certain instances where coverage under the plan would otherwise end.

If the employer continues to offer a group health plan, the employee and his/her family can retain their group health coverage for up to 18 months by paying group rates. The

COBRA premium may be higher than what the individual was paying while employed but generally the cost is lower than that for private, individual health insurance coverage.

 

The American Recovery and Reinvestment Act of 2009 (ARRA)

The American Recovery and Reinvestment Act of 2009 (ARRA) provides for premium reductions and additional election opportunities for health benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985, commonly called COBRA.

 

Eligible individuals pay only 35 percent of their COBRA premiums and the remaining 65 percent is reimbursed to the coverage provider through a tax credit. The premium reduction applies to periods of health coverage beginning on or after February 17, 2009 and lasts for up to nine months.

 

Use this link to review the full text of the Act.  http://www.dol.gov/dol/topic/health-plans/cobra.htm

 

Consumer Credit Protection Act of 1968

Title III of the Consumer Credit Protection Act (CCPA) protects employees from discharge by their employers because their wages have been garnished for any one debt, and it limits the amount of an employee’s earnings that may be garnished in any one week. Title III applies to all employers and individuals who receive earnings for personal services (including wages, salaries, commissions, bonuses and income from a pension or retirement program, but ordinarily not including tips).

 

Wage garnishment occurs when an employer withholds the earnings of an individual for payment of a debt as the result of a court order or other equitable procedure. Title III prohibits an employer from discharging an employee because his or her earnings have been subject to garnishment for any one debt, regardless of the number of levies made or proceedings brought to collect it. Title III does not, however, protect an employee from discharge if the employee’s earnings have been subject to garnishment for a second or subsequent debt.

 

In most cases, Title III gives wage earners the right to receive at least partial compensation for the personal services they provide despite wage garnishment. The Wage and Hour Division of the Employment Standards Administration accepts complaints of alleged Title III violations.

 

If a state wage garnishment law differs from Title III, the employer must observe the law resulting in the smaller garnishment or prohibiting the discharge of an employee because his or her earnings have been subject to garnishment for more than one debt.

 

Use this link to review the full text of the Act.  http://www.dol.gov/compliance/laws/comp-ccpa.htm

 

Employment at Will Doctrine

At will employment describes the employment relationship between employers and employees in almost every state. At will employment means that the Company does not offer tenured or guaranteed employment for any period of time, to any employee without an employment contract or written direction from the CEO/President. In at will employment, either the Company or the employee can terminate the employment relationship at any time, with or without cause, with or without notice.

 

This does not mean that employers can arbitrarily fire employees without good faith communication, fairness, and non-discriminatory practices. In fact, courts are increasingly finding for employees in litigation. Employers must demonstrate a good faith effort to correct the employee’s performance or the other issues that led to employment termination.

 

In addition, there are considered to be three major exceptions to the employment-at-will doctrine, as developed in common law. The exceptions principally address terminations that, although they technically comply with the employment-at-will requirements, do not seem just. The most widespread exception prevents terminations for reasons that violate a State’s public policy. Another widely recognized exception prohibits terminations after an implied contract for employment has been established. Finally, a minority of States has read an implied covenant of good faith and fair dealing into the employment relationship. The good faith covenant has been interpreted in different ways, from meaning that terminations must be for cause to meaning that terminations cannot be made in bad faith or with malice intended.

 

Equal Pay Act of 1963

The right of employees to be free from discrimination in their compensation is protected under several federal laws, including the following enforced by the U.S. Equal Employment Opportunity Commission (EEOC): the Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 and Title I of the Americans with Disabilities Act of 1990.

 

The Equal Pay Act requires that men and women be given equal pay for equal work in the same establishment. The jobs need not be identical, but they must be substantially equal. It is job content, not job titles, that determines whether jobs are substantially equal. Specifically, the EPA provides:

 

Employers may not pay unequal wages to men and women who perform jobs that require substantially equal skill, effort and responsibility, and that are performed under similar working conditions within the same establishment.

Pay differentials are permitted when they are based on seniority, merit, quantity or quality of production, or a factor other than sex. These are known as “affirmative defenses,” and it is the employer’s burden to prove that they apply.

 

It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on compensation or for filing a discrimination charge, testifying or participating in any way in an investigation, proceeding or litigation under Title VII, ADEA, ADA or the Equal Pay Act.

Use this link to review the full text of the Act.

http://www.eeoc.gov/laws/types/equalcompensation.cfm

 

Fair Credit Reporting Act (FCRA) of 1969

Employers often rely on information contained in consumer credit reports to decide whether to hire, promote or retain applicants and employees. The Credit Reporting Act of 1970 (FCRA) governs the use of consumer reports in all employment decisions.

 

Under the FCRA, an employer may obtain an applicant’s or employee’s consumer report for employment related purposes if it (1) gives the applicant or employee a clear and conspicuous written disclosure (in a document consisting solely of the disclosure) notifying him or her that a consumer report may be obtained and (2) obtains written authorization from the applicant or employee.

 

An employer may not obtain an investigative consumer report under the FCRA unless it (1) provides a written disclosure that an investigative consumer report may be made, including a statement to the effect that the consumer may request additional disclosures regarding the nature and scope of the investigation, as well as a written summary of his or her rights under the statute, and (2) certifies to the consumer reporting agency that it has made the above disclosures and that it will comply with any requests for additional disclosures.

 

An employer who negligently fails to comply with the FCRA (e.g., neglects to put the disclosure in a separate document or to provide a copy of the report before taking adverse action), the employer shall be liable to the applicant or employee for actual damages, costs and reasonable attorney’s fees.

 

Use this link to review the full text of the Act. http://www.ftc.gov/os/statutes/031224fcra.pdf

 

Fair Labor Standards Act

The Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting full-time and part-time workers in the private sector and in Federal, State, and local governments. The Wage and Hour Division (Wage-Hour) administers and enforces FLSA.

Basic Wage Standards

Covered, nonexempt workers are entitled to a minimum wage of not less than $7.25 per hour effective July 24, 2009. Non-exempt workers must be paid overtime pay at a rate of not less than one and one-half times their regular rates of pay after 40 hours of work in a workweek. Please note some states have a higher minimum wage rate. In cases where an employee is subject to both state and federal minimum wage laws, the employee is entitled to the higher minimum wage.

 

You can check minimum wage rates for your state using the link below.

http://www.dol.gov/whd/minwage/america.htm

 

While the FLSA does set basic minimum wage and overtime pay standards and regulates the employment of minors, there are a number of employment practices which FLSA does not regulate. For example, FLSA does not require:

  1. vacation, holiday, severance, or sick pay;
  2. meal or rest periods, holidays off, or vacations;
  3. premium pay for weekend or holiday work;
  4. pay raises or fringe benefits; or
  5. a discharge notice, reason for discharge, or immediate payment of final wages to terminated employees.

 

Also, FLSA does not limit the number of hours in a day or days in a week an employee may be required or scheduled to work, including overtime hours, if the employee is at least 16 years old.

The above matters are for agreement between the employer and the employees or their authorized representatives and, importantly, are often governed by state law.

 

Exemptions

Some employees are exempt from the overtime pay provisions or both the minimum wage and overtime pay provisions. Because exemptions are generally narrowly defined under FLSA, an employer should carefully check the exact terms and conditions for each. Detailed information is available from local Wage-Hour offices.

 

Recordkeeping

The FLSA requires employers to keep records on wages, hours, and other items, as specified in Department of Labor recordkeeping regulations. Most of the information is of the kind generally maintained by employers in ordinary business practice and in compliance with other laws and regulations. The records do not have to be kept in any particular form and time clocks need not be used. With respect to an employee subject to the minimum wage provisions or both the minimum wage and overtime pay provisions, the following records must be kept:

 

  1. personal information, including employee’s name, home address, occupation, sex, and birth date if under 19 years of age;
  2. hour and day when workweek begins;
  3. total hours worked each workday and each workweek;
  4. total daily or weekly straight-time earnings;
  5. regular hourly pay rate for any week when overtime is worked;
  6. total overtime pay for the workweek;
  7. deductions from or additions to wages;
  8. total wages paid each pay period; and
  9. date of payment and pay period covered.

Records required for exempt employees differ from those for nonexempt workers. Special information is required for home workers, for employees working under uncommon pay arrangements, for employees to whom lodging or other facilities are furnished, and for employees receiving remedial education.

 

Computing Overtime Pay

Overtime must be paid at a rate of at least one and one-half times the employee’s regular rate of pay for each hour worked in a workweek in excess of the maximum allowable in a given type of employment. Generally, the regular rate includes all payments made by the employer to or on behalf of the employee (except for certain statutory exclusions). The following examples are based on a maximum 40-hour workweek applicable to most covered nonexempt employees.

 

Please note some states have overtime requirements that differ from the federal standard. In cases where an employee is subject to both state and federal minimum wage laws, the employee is entitled to the higher minimum wage.

You can check minimum wage rates for your state using the link below.

http://www.dol.gov/whd/minwage/america.htm

 

Other Acts

Family and Medical Leave Act (FMLA) of 1993

The U.S. Department of Labor’s Employment Standards Administration, Wage and Hour Division, administers and enforces the Family and Medical Leave Act (FMLA). The FMLA entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons.

 

Amendments to the FMLA by the National Defense Authorization Act for FY 2008 (NDAA), Public Law 110-181, expanded the FMLA to allow eligible employees to take up to 12 weeks of job-protected leave in the applicable 12-month period for any “qualifying exigency” arising out of the fact that a covered military member is on active duty, or has been notified of an impending call or order to active duty, in support of a contingency operation. The NDAA also amended the FMLA to allow eligible employees to take up to 26 weeks of job-protected leave in a “single 12-month period” to care for a covered service member with a serious injury or illness.

 

The FMLA applies to all private-sector employers who employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including joint employers and successors of covered employers.

 

To be eligible for FMLA benefits, an employee must:

  • work for a covered employer;
  • have worked for the employer for a total of 12 months;
  • have worked at least 1,250 hours over the previous 12 months; and
  • work at a location in the United States or in any territory or possession of the United States where at least 50 employees are employed by the employer within 75 miles.

A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons:

  • for the birth and care of a newborn child of the employee;
  • for placement with the employee of a son or daughter for adoption or foster care;
  • to care for a spouse, son, daughter, or parent with a serious health condition;
  • to take medical leave when the employee is unable to work because of a serious health condition; or
  • for qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on active duty or call to active duty status as a member of the National Guard or Reserves in support of a contingency operation.

 

A covered employer also must grant an eligible employee who is a spouse, son, daughter, parent, or next of kin of a current member of the Armed Forces, including a member of the National Guard or Reserves, with a serious injury or illness up to a total of 26 workweeks of unpaid leave during a “single 12-month period” to care for the service member.

 

Under some circumstances, employees may take FMLA leave intermittently – taking leave in separate blocks of time for a single qualifying reason – or on a reduced leave schedule – reducing the employee’s usual weekly or daily work schedule.

 

A covered employer is required to maintain group health insurance coverage for an employee on FMLA leave whenever such insurance was provided before the leave was taken and on the same terms as if the employee had continued to work. If applicable, arrangements will need to be made for employees to pay their share of health insurance premiums while on leave. In some instances, the employer may recover premiums it paid to maintain health coverage for an employee who fails to return to work from FMLA leave.

 

Upon return from FMLA leave, an employee must be restored to the employee’s original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. An employee’s use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using FMLA leave, nor be counted against the employee under a “no fault” attendance policy. If a bonus or other payment, however, is based on the achievement of a specified goal such as hours worked, products sold, or perfect attendance, and the employee has not met the goal due to FMLA leave, payment may be denied unless it is paid to an employee on equivalent leave status for a reason that does not qualify as FMLA leave.

 

The FMLA is very complex and the administration of it is very detailed. It is recommended that you review the full text of the Act and develop a policy and the appropriate forms if you qualify as a covered employer.

 

Use this link to review the full text of the Act.  http://www.dol.gov/compliance/laws/comp-fmla.htm

 

The Genetic Information Nondiscrimination Act (GINA) of 2008

The Genetic Information Nondiscrimination Act (GINA) prohibits U.S. insurance companies and employers from discriminating on the basis of information derived from genetic tests.

It forbids insurance companies from discriminating through reduced coverage or pricing and prohibits employers from making adverse employment decisions based on a person’s genetic code. In addition, insurers and employers are not allowed under the law to request or demand a genetic test.

GINA also protects the privacy of personal genetic information by prohibiting group health plans and insurers from collecting or requesting genetic information with narrow exceptions;

 Prohibits employers from collecting and using employees’ genetic information;

 Prohibits employers from discriminating against employees in hiring, firing or any other terms and conditions of employment based on a worker’s genetic information; and

 Allows victims of genetic information discrimination to bring their case to court.

 

Use this link to review the full text of the Act.  http://www.eeoc.gov/laws/types/genetic.cfm

 

Health Insurance Portability and Accountability Act (HIPAA) of 1996

The Health Insurance Portability and Accountability Act (HIPAA) offers protections for workers that improve portability and continuity of health insurance coverage.

 

HIPAA protects workers and their families by:

 Limiting exclusions for preexisting medical conditions.

 Providing credit against maximum preexisting condition exclusion periods for prior health coverage and a process for providing certificates showing periods of prior coverage to a new group health plan or health insurance issuer.

 Providing new rights that allow individuals to enroll for health coverage when they lose other health coverage, get married or add a new dependent.

 Prohibiting discrimination in enrollment and in premiums charged to employees and their dependents based on health status-related factors.

 Guaranteeing availability of health insurance coverage for small employers and renewability of health insurance coverage for both small and large employers.

 Preserving the states’ role in regulating health insurance, including the states’ authority to provide greater protections than those available under federal law.

 

HIPAA also established the Medical Privacy Rule that covers public and private sector entities including health plans, health care clearinghouses, and health care providers who conduct administrative or financial transactions electronically.

Covered information includes medical records or other data that contain individually identifiable health information that may be used or disclosed in any form such as electronically, on paper, or orally.

In its simplest terms, the Medical Privacy Rule requires employers to keep medical/benefits information confidential and to ensure the privacy of the employee.

 

Use this link to review the full text of the Act.  http://www.dol.gov/dol/topic/health-plans/portability.htm

 

Immigration Reform and Control Act of 1986 (IRCA)

Under the Immigration Reform and Control Act (IRCA), when hiring, discharging, recruiting or referring for a fee, employers with four or more employees may not:

 

 Discriminate because of national origin against U.S. citizens, U.S. nationals, and authorized aliens. (Employers of 15 or more employees should note that the ban on national origin discrimination against any individual under Title VII of the Civil Rights Act of 1964 continues to apply.)

 Discriminate because of citizenship status against U.S. citizens, U.S. nationals, and the following classes of aliens with work authorization: permanent residents, temporary residents (that is, individuals who have gone through the legalization program), refugees, and asylees.

 

Employers can demonstrate compliance with the law by following the verification (I-9 Form) requirements and treating all new hires the same including:

 Establish a policy of hiring only individuals who are authorized to work in the United States. Hiring “U.S. citizens only” is illegal. An employer may require U.S. citizenship for a particular job only if it is required by federal, state, or local law, or by government contract.

 Obtain I-9 Form for all new hires. This form establishes that the individuals they hire are authorized to work in the United States. Utilize E-verify.

 Permit employees to present any document or combination of documents acceptable by law. Employers cannot demonstrate a preference for one document over others for purposes of completing the I-9 Form. Authorized aliens do not carry the same documents. As long as the documents are allowed by law and appear to be genuine and to relate to the person, they should be accepted. Not to do so is illegal. Acceptable documents are listed on the reverse side of the I-9 form.

 

Use this link to review the full text of the Act.  http://www.uscis.gov/portal/site/uscis

 

Immigration and Nationality Act (INA)

The Immigration and Nationality Act (INA) applies to all employers. Under the INA, employers may hire only persons who may legally work in the United States and aliens authorized to work in the U.S. The employer must verify the identity and employment eligibility of anyone to be hired, which includes completing the Employment Eligibility Verification Form (I-9). Employers must keep each I-9 on file for at least three years, or one year after employment ends, whichever is longer.

 

The INA protects U.S. citizens and aliens authorized to accept employment in the U.S. from discrimination in hiring or discharge on the basis of national origin and citizenship status.

 

Use this link to review the full text of the Act. http://www.dol.gov/compliance/laws/comp-ina.htm

 

OSHA Hazard Communication Standard

OSHA’s Hazard Communication Standard (HCS) is based on the concept that employees have both a need and a right to know the hazards and the identities of the chemicals they are exposed to when working. They also need to know what protective measures are available to prevent adverse effects from occurring.

 

All employers are responsible for informing and training workers about the hazards in their workplaces, retaining warning labels, and making available material safety data sheets (MSDS’s) for hazardous chemicals.

 

All workplaces where employees are exposed to hazardous chemicals must have a written plan which describes how the standard will be implemented in that facility. The only work operations which do not have to comply with the written plan requirements are laboratories and work operations where employees only handle chemicals in sealed containers.

 

The written program must reflect what employees are doing in a particular workplace. For example, the written plan must list the chemicals present at the site, indicate who is responsible for the various aspects of the program in that facility and where written materials will be made available to employees. The written program must describe how the requirements for labels and other forms of warning, material safety data sheets, and employee information and training are going to be met in the facility.

 

The HCS pre-empts all state (in states without OSHA-approved job safety and health programs) or local laws which relate to an issue covered by HCS without regard to whether the state law would conflict with, complement, or supplement the federal standard, and without regard to whether the state law appears to be “at least as effective as” the federal standard.

 

The only state worker right-to-know laws authorized would be those established in states and jurisdictions that have OSHA-approved state programs. These states and jurisdictions include: Alaska, Arizona, California, Connecticut (state and municipal employees only), Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, New York (state and municipal employees only), North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virgin Islands, Virginia, Washington, and Wyoming.

 

Use this link to review the full text of the Act. http://www.osha.gov/index.html

 

Pregnancy Discrimination Act

The Pregnancy Discrimination Act is an amendment to Title VII of the Civil Rights Act of 1964. Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII, which covers employers with 15 or more employees. Women who are pregnant or affected by related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations. Pregnancy is not to be treated differently from any other medical condition. Title VII’s pregnancy-related protections include: hiring, leave, health insurance coverage or other fringe benefits.

 

It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on pregnancy or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII.

 

Use this link to review the full text of the Act. http://www.eeoc.gov/laws/statutes/pregnancy.cfm

 

Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination on the bases of race and color, as well as national origin, sex, and religion. Title VII applies to employers with 15 or more employees.

 

Equal employment opportunity cannot be denied any person because of his/her racial group or perceived racial group, his/her race-linked characteristics (e.g., hair texture, color, facial features), or because of his/her marriage to or association with someone of a particular race or color. Title VII also prohibits employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of individuals of certain racial groups. Title VII’s prohibitions apply regardless of whether the discrimination is directed at Whites, Blacks, Asians, Latinos, Arabs, Native Americans, Native Hawaiians and Pacific Islanders, multi-racial individuals, or persons of any other race, color, or ethnicity.

 

It is unlawful to discriminate against any individual in regard to recruiting, hiring and promotion, transfer, work assignments, performance measurements, the work environment, job training, discipline and discharge, wages and benefits, or any other term, condition, or privilege of employment. Title VII prohibits not only intentional discrimination, but also neutral job policies that disproportionately affect persons of a certain race or color and that are not related to the job and the needs of the business. Employers should adopt “best practices” to reduce the likelihood of discrimination and to address impediments to equal employment opportunity.

 

Title VII prohibits offensive conduct, such as racial or ethnic slurs, racial “jokes,” derogatory comments, or other verbal or physical conduct based on an individual’s race/color. The conduct has to be unwelcome and offensive, and has to be severe or pervasive. Employers are required to take appropriate steps to prevent and correct unlawful harassment. Likewise, employees are responsible for reporting harassment at an early stage to prevent its escalation.

Title VII prohibits discrimination in compensation and other terms, conditions, and privileges of employment. Thus, race or color discrimination may not be the basis for differences in pay or benefits, work assignments, performance evaluations, training, discipline or discharge, or any other area of employment.

 

Title VII is violated where employees who belong to a protected group are segregated by physically isolating them from other employees or from customer contact. In addition, employers may not assign employees according to race or color. It is also illegal to exclude members of one group from particular positions or to group or categorize employees or jobs so that certain jobs are generally held by members of a certain protected group. Coding applications/resumes to designate an applicant’s race, by either an employer or employment agency, constitutes evidence of discrimination where people of a certain race or color are excluded from employment or from certain positions.

 

Employees have a right to be free from retaliation for their opposition to discrimination or their participation in an EEOC proceeding by filing a charge, testifying, assisting, or otherwise participating in an agency proceeding.

 

Use this link to review the full text of the Act. http://www.eeoc.gov/laws/statutes/titlevii.cfm

 

Uniformed Services Employment and Reemployment Rights Act of 1994

Uniformed Services Employment and Reemployment Rights Act (USERRA) protects civilian job rights and benefits for veterans and members of Reserve components in the following areas.

 

 Establishes the cumulative length of time that an individual may be absent from work for military duty and retain reemployment rights to five years. USERRA clearly defines that employment protection does not depend on the timing, frequency, duration, or nature of an individual’s service as long as the basic eligibility criteria are met.

 

 Provides protection for disabled veterans, requiring employers to make reasonable efforts to accommodate the disability.

 

 Establishes that returning service-members are reemployed in the job that they would have attained had they not been absent for military service with the same seniority, status and pay, as well as other rights and benefits determined by seniority.

 

Requires that reasonable efforts (such as training or retraining) be made to enable returning service members to refresh or upgrade their skills to help them qualify for reemployment. The law clearly provides for alternative reemployment positions if the service member cannot qualify for the “escalator” position.

 

 Establishes that while an individual is performing military service, he or she is deemed to be on a furlough or leave of absence and is entitled to the non-seniority rights accorded other individuals on non-military leaves of absence.

 Provides for health and pension plan coverage based on specific guidelines.

 

Use this link to review the full text of the Act. http://www.dol.gov/compliance/laws/comp-userra.htm

 

Veterans Benefits Improvement Act of 2004

The Veterans Benefits Improvement Act amends the Uniformed Services Employment and Reemployment Rights Act (USERRA). First, USERRA previously provided that eligible employees who are called to active military service must be given the right to continue coverage for themselves and their dependents under the employer’s group health plan for a period of 18 months, the new law extends this coverage period from 18 to 24 months.

 

In addition, the Veterans Act requires employers to provide employees entering military service covered by USERRA with a notice of their rights, benefits and obligations under the law by March 10, 2005. This requirement can be met by posting a notice in a location customarily used by the employer to post important notices. The Department of Labor was directed to provide a model notice, which was issued March 10, 2005 in poster format. The notice, entitled “Your Rights Under USERRA,” can also be issued to employees via hand-delivery, mail or e-mail. The poster contains information regarding health plan continuation and reinstatement rights for employees who go on military leave.

 

This information is not meant to serve as legal advice, only to provide an overview of the employment laws that may impact your operation. Specific questions should be referred to your accountant or attorney to ensure compliance. It is recommended that you identify an accountant and attorney to be available to review any employment law related questions that may arise.

 

Compliance Assistance Materials

Employment Law Guide – Describes DOL’s major laws using plain language covering various employment issues including minimum wage, overtime, safety and health, pensions, family and medical leave, nondiscrimination, and more.

Workplace Poster Requirements – Helps small businesses and other employers learn which DOL posters to display in their workplace.

Wage and Hour Labor Standards Information for New Businesses – Provides an overview of basic wage and hour information.

Easy Retirement Solutions for Small Business – Provides help for Small Businesses who want to start a retirement plan.

SIMPLE IRA Plans for Small Businesses (PDF) – Information on SIMPLE (Savings Incentives Match Plan for Employees of Small Employers) IRA plans.

401(k) Plans for Small Businesses – Highlights employers’ options and responsibilities when operating a 401(k).

Occupational Safety and Health Administration’s (OSHA) Small Business Assistance Portal

OSHA Handbook for Small Businesses (PDF) – Helps small businesses establish their own safety and health programs.

 

State Employment Laws

Employment laws vary by state. Go to http://www.dol.gov/dol/location.htm and select your state to see the laws regarding employment. The Department of Labor (DOL) WEB site will include information about wages, Industrial Commission information, Benefits Security Administration, and other important state-by-state matters that you should be aware of. It may also be helpful to consult the website of your own state’s Department of Labor, Attorney General, or other labor law enforcement agency.

 

OSHA /State OSHA Programs

Occupational Safety & Health Administration (OSHA) is set up by regional/area offices. Go to http://www.dol.gov/dol/location.htm to select the appropriate state.

 

Federal Standards – Occupational Safety and Health Act (OSHA) of 1970

In general, the Occupational Safety and Health Act of 1970 (OSH ACT) covers all employers and their employees in the 50 states, the District of Columbia, Puerto Rico, and other U.S. territories. Coverage is provided either directly by the federal Occupational Safety and Health Administration (OSHA) or by an OSHA-approved state job safety and health plan.

 

The Act assigns OSHA two regulatory functions: setting standards and conducting inspections to ensure that employers are providing safe and healthful workplaces. OSHA standards may require that employers adopt certain practices, means, methods, or processes reasonably necessary and appropriate to protect workers on the job. Employers must become familiar with the standards applicable to their establishments and eliminate hazards.

Compliance with standards may include ensuring that employees have been provided with, have been effectively trained on, and use personal protective equipment when required for safety or health. Employees must comply with all rules and regulations that apply to their own actions and conduct.

 

Even in areas where OSHA has not set forth a standard addressing a specific hazard, employers are responsible for complying with the OSH Act’s “general duty” clause. The general duty clause [Section 5(a)(1)] states that each employer “shall furnish . . . a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

Federal OSHA Standards

Standards are grouped into four major categories: general industry, construction, maritime, and agriculture. While some standards are specific to just one category, others apply across industries. Among the standards with similar requirements for all sectors of industry are those that address access to medical and exposure records, personal protective equipment, and hazard communication. Access to Medical and Exposure Records: This regulation provides a right of access to employees, their designated representatives, and OSHA to relevant medical records, including records related to that employee’s exposure to toxic substances.

 

Personal Protective Equipment: This standard, which is defined separately for each segment of industry except agriculture, requires employers to provide employees with personal equipment designed to protect them against certain hazards and to ensure that employees have been effectively trained on the use of the equipment.

 

Hazard Communication: This standard requires manufacturers and importers of hazardous materials to conduct hazard evaluations of the products they manufacture or import. If a product is found to be hazardous under the terms of the standard, the manufacturer or importer must so indicate on containers of the material, and the first shipment of the material to a new customer must include a material safety data sheet (MSDS). Employers must use these MSDSs to train their employees to recognize and avoid the hazards presented by the materials.

 

OSHA regulations cover such items as recordkeeping, reporting, and posting.

Recordkeeping: Every employer covered by OSHA who has more than 10 employees, except for employers in certain low-hazard industries in the retail, finance, insurance, real estate, and service sectors, must maintain three types of OSHA-specified records of job-related injuries and illnesses.

The OSHA Form 300 is an injury/illness log, with a separate line entry for each recordable injury or illness. Each year, the employer must conspicuously post in the workplace a Form 300A, which includes a summary of the previous year’s work-related injuries and illnesses. The Form 300A must be posted by February 1 and kept in place until at least April 30.

 

OSHA Form 301 is an individual incident report that provides added detail about each specific recordable injury or illness. Employers with 10 or fewer employees and employers in statistically low-hazard industries (listed in 29 CFR 1904, Subpart B) are exempt from maintaining these records.

 

Reporting: Each employer, regardless of industry category or the number of its employees, must advise the nearest OSHA office of any accident that results in one or more fatalities or the hospitalization of three or more employees. The employer must so notify OSHA within eight hours of the occurrence of the accident. OSHA often investigates such accidents to determine whether violations of standards contributed to the event.

 

The Act grants employees several important rights. Among them are the rights to complain to OSHA about safety and health conditions in their workplaces and, to the extent permitted by law, have their identities kept confidential from employers, contest the amount of time OSHA allows for correcting violations of standards, and participate in OSHA workplace inspections.

 

Every establishment covered by the Act is subject to inspection by OSHA compliance safety and health officers (CSHOs). In states with their own OSHA-approved state plan, pursuant to state law, state officials conduct inspections, issue citations for violations, and propose penalties in a manner that is at least as effective as the federal program.

 

The OSHA Act covers all private sector working conditions that are not addressed by safety and health regulations of another federal agency under other legislation.

 

Use this link to view the full text of the Act. http://www.osha.gov/index.html

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