NFIB Guide: Understanding Federal Employment Law & Key Laws, Study notes of Law

Download NFIB Guide: Understanding Federal Employment Law & Key Laws and more Study notes Law in PDF only on Docsity! W H A T’ S IN SI DE NFIB GUIDE TO FEDERAL EMPLOYMENT LAW Fair Labor Standards Act (FLSA) Equal Pay Act (amendment to FLSA) Interviewing Don’ts Title VII of the Civil Rights Act of 1964 (Title VII) » Sexual Harassment (Title VII) » Pregnancy Discrimination Act of 1978 (PDA) » Age Discrimination in Employment Act (ADEA) » Genetic Information Nondiscrimination Act of 2008 (GINA) Americans with Disabilities Act (ADA) Immigration Reform and Control Act (IRCA) (I-9) Family and Medical Leave Act of 1993 (FMLA) Occupational Safety and Health Act (OSH Act) 1. 2. 3. 4. 5. 6. 7. 8. $12.95 SEPTEMBER 2010 What You Need to KnowAbout Employment Law DEVELOPED BY Small Business Legal Center Dear NFIB Member: As a small business owner, you work hard everyday at your dream of running a successful enterprise. Yet being a small business owner means spending countless hours going over every detail to make sure your business is in compliance with federal and state laws. To help make compliance a little easier, we are pleased to provide you with this NFIB Guide to Federal Employment Law. This book will give you the basics of employment laws that you will most likely encounter at your business, such as the Fair Labor Standards Act, the Occupational Safety and Health Act, and several anti-discrimination laws. Developed by the NFIB Small Business Legal Center, the NFIB Guide to Federal Employment Law was written to be your first stop to learn which federal employment laws apply to your business and what your business must do to comply. The NFIB Small Business Legal Center is the voice for small business in the nation’s courts and the legal resource for small business owners nationwide. This guide is just one of the many compliance guides developed by our Legal Center to make your job just a little bit easier. To find out about all of the guides available in this series, call 1-800-NFIB-NOW or visit www.NFIB.com/legal. Sincerely, Dan Danner NFIB President www.NFIB.com | NFIB GuIde to Federal employmeNt law 3 two INTERVIEWING DON’TS When interviewing job candidates, to avoid liability it’s impor- tant your questions focus exclusively on the skill and experience needed for the position. Here’s a list of questions you should not ask applicants. DOn’t ask aBOut: 1. Age: How old are you? When did you graduate? When were you born? 2. MAriTAL/FAMiLy STATuS: What is your marital status? Do you plan to have a family? When? How many children do you have? What are your childcare arrangements? What is your sexual orientation? 3. OrgAnizATiOnS: To what clubs or social organizations do you belong? 4. PerSOnAL: How tall are you? How much do you weigh? 5. ArreST recOrd: Have you ever been arrested? 6. nATiOnAL Origin/ciTizenShiP: Are you a U.S. citizen? What is your native language? 7. reLigiOn: What is your religious affiliation? Does your religion prevent you from working weekends or holidays? 8. MiLiTAry recOrd: Were you honorably discharged? Request military records. 9. diSAbiLiTieS: Do you have any disabilities? Have you had any recent or past illnesses or operations? How is your family’s health? Please complete the following medical history. Application The Equal Pay Act applies to all employers. Permitted Acts There are limited exceptions for pay differ- entials when an employer can show that: • the difference is due to a seniority or merit system; or • the difference is due to an employees’ education, training, and experience. Record-keeping Requirements Employers should retain: • payroll records for at least three years; and • all records (including wage rates, job evaluations, seniority and merit systems, and collective bargaining agreements) for at least one year after an employee’s termination, that explain the basis for paying different wages to employees of opposite sexes in the same establishment. Notice The notice, Equal Employment Opportunity is the Law, must be posted where employ- ees can readily see it. ADDITIONAL INFORMATION For more information, please refer to the Equal Employment Oppor- tunity Commission’s (EEOC) website at www.eeoc.gov or contact (800) 669-4000 to locate an EEOC field office in your area. EQUAL PAY ACT three The 1963 AcT prohibits wage and benefit discrimination between men and women in substantially equal jobs within the same establishment. 4 NFIB GuIde to Federal employmeNt law | www.NFIB.com four Application Title VII applies to businesses with 15 or more employees. Examples of Discrimination Below are some examples of discrimination covered under Title VII: • Harassing a person because of their friends’, relatives’, or associates’ race, skin color, religion, gender, national origin, age, or disability. (See also Sexual Harassment section.) • Treating people in similar jobs differently. • Making assumptions about the abilities of persons based on stereotypes, physical characteristics, or age. • Retaliating against a person because a complaint was filed. TiTLe Vii PrOhibiTS employment discrimination on the basis of race, color, religion, sex, or national origin in hiring, employment (all terms, conditions, and benefits), and termination. TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 (TITLE VII) Remedies Available If a complainant is successful in a Title VII cause of action, rem- edies that may be available include reinstatement, back pay, damages for future loss of earnings, emotional pain and suffer- ing, mental anguish, and attorneys’ fees. Notice The notice, Equal Employment Opportunity is the Law, should be posted where employees can readily see it. ADDITIONAL INFORMATION To locate your Equal Employment Opportunity Commission (EEOC) field office call (800) 669-4000 or visit their website at www.eeoc.gov. www.NFIB.com | NFIB GuIde to Federal employmeNt law 5 Application Title VII applies to businesses with 15 or more employees. State and local laws may cover all businesses. Examples of Sexual Harassment Sexual harassment covers behavior that creates a hostile work environment. Examples are: • unwelcome sexual advances. • requests for sexual favors. • verbal or physical conduct of a sexual nature. • sexually suggestive or offensive personal references about an individual. Note: • the victim or harasser may be male or female. • the victim does not have to be of the opposite sex. • the harasser can be the victim’s supervisor, an agent of the employer, a supervisor of another area, a co-worker, or a non-employee. • the victim does not have to be the person harassed but can be anyone affected by the offensive conduct. • unlawful sexual harassment may occur without economic injury to or discharge of the victim. Notice The notice, Equal Employment Opportunity is the Law, should be posted where employees can readily see it. Title VII prohibits sex discrimination and sexual harassment in the workplace. ADDITIONAL INFORMATION For more information, please refer to Equal Employment Opportunity Commission’s (EEOC) website at www.eeoc.gov or call (800) 669-4000 to locate an EEOC field office in your area. Application The PDA applies to employers with 15 or more employees. Prohibited Acts An employer should not: • refuse to hire a woman because she is pregnant as long as she is able to perform the major functions of her job; or • refuse to hire a pregnant woman because its prejudices against pregnant workers or the prejudices of co-workers, clients or customers; or • fire or force a worker to leave because she is pregnant; or • take away credit for previous years, accrued retirement benefits, or seniority because of maternity leave; or • fire or refuse to hire a woman because she has an abortion. Notice The notice, Equal Employment Opportunity is the Law, should be posted where employees can readily see it. The 1975 Act prohibits discrimination on the basis of pregnancy, childbirth or related medical conditions. Women who are affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations. ADDITIONAL INFORMATION For more information, please refer to the Equal Employment Opportunity Commission’s (EEOC) website at www.eeoc.gov or contact (800) 669-4000 to locate the EEOC field office in your area. four (TITLE VII) SEXUAL HARASSMENT (PDA) PREGNANCY DISCRIMINATION ACT 8 NFIB GuIde to Federal employmeNt law | www.NFIB.com Application The IRCA applies to all employers, with the following exceptions: • employers with between four and 14 employees (who would not be covered by Title VII anti-discrimination provisions) may not discriminate on the basis of national origin; and • employers with at least four employees may not discriminate on the basis of citizenship. Procedural and Record-keeping Requirements All employers should ensure that employees and the employer complete an Employment Eligibility Verification Form (I-9) when an employee begins work. Employees must keep I-9s on file for all current employees.The ircA OF 1986 prohibits any employer from hiring any person who is not legally authorized to work in the United States and it requires that employers verify the employment eligibility of all new employees. The IRCA also makes it unlawful for employers to dis- criminate in hiring and discharge based on national origin (as does Title VII) and on citizenship status. IMMIGRATION REFORM AND CONTROL ACT (IRCA) ADDITIONAL INFORMATION For more information, contact the U.S. Citizenship and Immigration Services (USCIS) at (800) 375-5283 or visit their website at www.uscis.gov. If you need a particular form, please call (800) 870-3676. six www.NFIB.com | NFIB GuIde to Federal employmeNt law 9 Leave Requirement An employee is entitled to unpaid leave for any of the following reasons: • to care for the employee’s child after birth, or placement for adoption or foster care; • to care for the employee’s spouse, son or daughter, or parent, who has a serious health condition; or • for a serious health condition that makes the employee un- able to perform the employee’s job. An employer may require 30 days advance notice (when the need is foreseeable) and medical certification. Employment and Benefit Protections Upon return from leave under FMLA, an employee should be restored to their original or an equivalent position with equivalent pay, benefits, and other employment terms. An employee’s use of leave under FMLA may not result in the loss of any employment benefit that accrued prior to the start of an employee’s leave. Employers must maintain the employee’s health coverage under any “group health plan” during the employee’s FMLA leave. Notice Employers should post, Your Rights Under the Family and Medical Leave Act of 1993, where employees can readily see it. FAMILY AND MEDICAL LEAVE ACT OF 1993 (FMLA) ADDITIONAL INFORMATION For more information visit www.dol.gov/compliance/ laws/comp-fmla.htm. An employer may require 30 days advance leave notice and medical certification. seven The FMLA reQuireS employers with 50 or more employees to provide eligible employees with up to 12 weeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons, or 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 FMLA also allows eligible employees to take up to 26 workweeks of job-protected leave in a “single 12-month period” to care for a covered service member with a serious injury or illness. 10 NFIB GuIde to Federal employmeNt law | www.NFIB.com Application All employers are covered by the OSH Act, except: • partners; • self-employed persons; or • farms where only immediate members of the family are employed. Inspections Every business covered by the OSH Act is subject to inspection. Below are some helpful guidelines for the inspection: • Anything said to OSHA by a supervisor or manager will be recorded, and if it is adverse to the employer’s position it will be construed as an admission of liability in the event of a citation proceeding or criminal prosecution. • The employer’s representatives need not say anything to OSHA about the workplace conditions; the representative need only provide logs and other documents required to be kept. • Be familiar with the forms used by OSHA to record informa- tion gained from inspections so that answers to questions will be recorded on those forms as favorably as possible. • Immediately correct any apparent hazards disclosed during the inspection; this will not prejudice the employer’s right later to contest a citation, and may enhance the employer’s ability to obtain credit for good faith and lessen the chance for issuance of a “willful” citation. • After an inspection, give the inspector a name, title, and address to whom any citations should be sent; otherwise, valuable time will be lost while mail travels within the company. • Do not exaggerate the quality of safety/health conditions when describing them to an OSHA inspector. Record-keeping Requirements There are five important steps required by the OSH Act: 1. Obtain a report on injuries requiring medical treatment (except first aid); and 2. Record injuries in the log (OSHA Form 300) according to the instructions; and 3. Prepare a supplementary record (OSHA Form 301) of oc- cupational injuries and illnesses for recordable cases; and 4. Every year, prepare the annual summary (OSHA Form 300A); post it no later than February 1, and keep it posted until April 30 (A good place to post it is next to the OSHA workplace poster); and 5. Keep these records for at least five years. Exemptions Small employers: Although subject to the OSH Act regulations, employers with 10 or fewer employees are exempt from the record-keeping requirements (unless required by your State). A list of exempt industries can be found at: www.osha.gov/ recordkeeping. OCCUPATIONAL HEALTH AND SAFETY ACT (OSHA) The OSh AcT reQuireS that employers provide a safe and healthy workplace. eight