What do you know about employment law? Martin, CEO Cleverest, sent over the links to the following article which you will find chocked full of information regarding current day employment law. We hope you find the details included invaluable to your employment law understandings, and requirements for operating a great HR dept.
BEGINNERS GUIDE TO EMPLOYMENT LAW…
As an employer, employment law is significant for you because it can be used as a mediation tool for your business and for your employee. In a way, both of you are being protected by employment law.
So what is employment law? Employment law governs over the duties and rights between employers and employees. Typically referred to as labor law, these rules were mainly created to make sure that employees are safe and treated correctly. Nevertheless, the rules are also there to protect employers’ interests too. Employment law is based on state and federal constitutions, administrative rules, legislation, and court opinions. In addition, particular employer and employee relationships can be governed by internal contracts
In this article, we will inform you of the basics of employment law for beginners like you. It will begin with your obligations as an employer, and then delve into the rights of your employees. Finally, we offer valuable research sources on U.S. employment law, so you can refer to the original legislations, as needed.
OBLIGATIONS OF THE EMPLOYER
As an employer, you have to abide by specific laws. You have to guarantee that you stick to the letter of the law, especially when it comes to:
- allowing your employees privacy;
- establishing a safe work setting;
- paying fair wages; and
- steering clear of harassment and discrimination.
Employment law was set up to ensure employee protection. However, when you follow the rules, you also protect yourself as an employer and your company. If you do not follow these rules, you would be making yourself and your business vulnerable to complaints and lawsuits.
Under the Age Discrimination in Employment Act or ADEA, you cannot discriminate in any shape, way, or form against job applicants or employees who are older than 40 years old just because of their age. Hence, as an employer, do not use a person’s age or nearness to retirement when you make a decision on hiring, paying, firing, promoting, or dispensing benefits.
For an employee to receive a claim on age discrimination, he or she must prove that he or she was over 40; was affected negatively by the action of the employer; and that age was a determining variable for the action of the employment. However, there is no cause for action for what they call reverse age discrimination. This means that employees who are below 40 years old cannot sue their employer if they made a decision to favor an employee older than 40 years old.
Fighting disability discrimination is captured by the Americans with Disabilities Act or the ADA. The ADA disallows job discrimination against people who are qualified but have a disability. This pertains to their hiring, compensating, terminating, promoting, job training, as well as other employment privileges, conditions, or terms. These people are described as individuals who can accomplish their essential functions with or without realistic adjustments. Note that addictions to alcohol and/or drugs as well as having communicable diseases are not disabilities.
Thus, as an employer, do not reject applicants immediately because you feel that their disability would inhibit them from performing a task well. Whenever you are going through the hiring process, stick to the questions about the ability of the applicant to perform the important features of the job. Do not ask the applicant questions that would need him or her to divulge their disability.
As an employer, discuss with your human resources how to establish sensible accommodations for any disabled employee. If an employee asks for an accommodation due to their disability, you must consider and/or implement it. The caveat is that the accommodation must not necessitate excessive hardships on your business operations.
What are these reasonable accommodations? They could be scheduling, offering auxiliary services and aids, reassigning jobs, modifying equipment, or allowing for accessible facilities. Excessive hardships could are those that require substantial expenses or challenges on your business.
Based on the Family and Medical Leave Act or FMLA, eligible employees who have had at least a year of service in your company can take a maximum of 12 weeks of unpaid but job-protected time off. This applies to the birth of a child; the adoption of a child; the care of themselves, a sick child, spouse, or parent with a serious condition.
Whenever your employee requests for a leave, listen to their requests and check if it meets the criteria of FMLA. Note that your employees do not need to indicate the FMLA to get protection. Talk to your human resources when you hear requests as described previously.
Based on the Equal Pay Act or EPA, employers cannot pay their female employees less than their male employees for jobs that need the same effort, skill, and responsibility.
Being the employer, review your pay scales to find any potential complaints on equal pay. If you have different pays for the same job title, this is acceptable, as long as you can indicate the different levels of duties, responsibilities, educational requirements, and skills.
Remember, for proof, as an employer, keep your payroll records for 3 years (at least) and all records for a year (at least) after the termination of an employee. These documents can explain the payment of different wages to employees of different genders, yet in the same company. The records can pertain to job evaluations, wage rates, collective bargaining agreements, and seniority and merit systems.
According to the Immigration Reform and Control Act or IRCA, it is not legal for you to employ illegal aliens. You have to verify their workplace eligibility and identification by filling out I-9 Forms. Nevertheless, keep in mind that it is not legal to discriminate against illegal aliens through subpar pay or harassment.
Aside from age and disability discrimination, you are prohibited from discriminating in hiring, paying, or firing based on an individual’s religion, race, sex, or national origin. This stems from the Civil Rights Act of 1964, Title VII.
So treat all your applicants and employees the same way. Do not let their religion, race, gender, or other features and characteristics unrelated to job performance affect your assessment of them. Ask for the same from others you supervise. Remember, do not tolerate any type of harassment.
It is illegal for employers to discriminate against employees who are called to do military duty or to volunteer. This is found under the Uniformed Services Employment and Reemployment Rights Act. Hence, whenever reservists come back from their active duty tours for less than 5 years, you should employ them again to their previous jobs or equal jobs.
When you have returning reservists, accept them back to their old jobs. Courts usually go with the employees when it comes to disputes of this nature.
Minimum Wage/Overtime Pay
The country’s main wage law is entitled the Fair Labor Standards Act or FLSA. It establishes the federal minimum wage. Note that other states have even higher minimum wage levels. FLSA requires that employers pay hourly employees overtime pay who work greater than 40 hours in a workweek. The cost is about 1½ times their usual rate of pay. It should be considered that teenagers can only work for a limited time and their type of duties are restricted as well.
Make sure that you pay your employees greater than the minimum wage. Moreover, pay them overtime, if applicable. Whenever you make major updates to the duties of your employees, contact your human resources. Check if this makes them eligible or not for overtime pay.
Consider, however, that there are exemptions to the law on minimum wages and overtime pay. These include:
- administrative, executive, and professional employees (called the white collar exemption);
- casual babysitters;
- certain workers in the farm;
- external sales employees; and
- seasonal recreational or amusement organizations.
Remember that these exemptions can be tricky. You can face minimum wage liabilities if you wrongly classify your employee as exempt or not exempt. If there is a misclassification, for example, of a worker who is exempt but works overtime, you can face overtime liability and be found violating the minimum wage law, if your employee’s hourly rate is less than the minimum wage.
PDA or the Pregnancy Discrimination Act disallows discrimination based on childbirth, pregnancy, and connected medical conditions. You cannot rebuff a job position or a promotion simply because an employee is pregnant, case in point. Specifically, she cannot be fired because of her condition, nor forced to take a leave.
You have to regard pregnant employees the same as your other employees according to their capacity or incapacity to work. So if you give light duties for an employee who cannot lift boxes because they have a bad back, do the same for a pregnant employee.
Safety in the Workplace
The Occupational Safety and Health Act or OSHA needs employers to have a business free from acknowledged hazards. Thus, offer a safe working environment for your employees. Look for and point to conspicuous hazards or possible safety challenges as early as possible.
RIGHTS OF THE EMPLOYEE
An employee has particular rights according to labor law. He or she deserves to be treated a certain way, no matter what their religion, gender, race, or sexual identity may be.
Ability to File Claims or Complaints without Fear of Retribution
Employees have the right to file claims or complaints against their employer without fear of retribution or retaliation. This retaliation can be a discipline, a demotion, a salary decrease, a firing, or a job reassignment – as long as it is a negative action.
Remember that if an employer’s negative action deters an employee from making a reasonable complaint, this is retribution. Federal laws exist to protect employees from retaliation whenever they file claims or complaints. Moreover, state laws also disallow employers from exacting retribution from their employees.
Employees should be accorded fair salaries – this is a given. Beyond the FLSA described previously, which covers minimum wage for particular workers, there are also other laws that protect the rights of employees to adequate pay.
- The Contract Work Hours and Safety Standards Act: requires overtime standards for almost all federal service contracts, federal supply contracts, and construction contracts that are federally funded, greater than USD 100,000
- The Davis-Bacon and Related Acts: requires that employers pay current wage rates as well as fringe benefits for construction that is financed or assisted federally
- The Service Contract Act: requires that employers pay current wage rates as well as fringe benefits for contracts servicing the federal government
- The Walsh-Healey Public Contract Acts: requires employers to pay the minimum wage and overtime pay for federal contracts to create or offer the federal government goods
Freedom from Harassment and Discrimination
We have already generally dealt with the obligations of employers to prevent discrimination (age, disability, pregnancy, etc.) in the workplace. A few more will be discussed here, focused on the more typically probable yet general harassment and discrimination that occur in the workplace.
Race. Employees have the right to be free of race discrimination and harassment. They cannot be hired, fired, promoted, compensated, trained, and the like, based on their race. In addition, employees can challenge existing employment policies that inadvertently discriminate against a lopsided percentage of employees due to their race. Also, an employer cannot discriminate against his or her employee just because he or she is in an interracial relationship.
It is also illegal to harass people based on their race. Ethnic slurs, racial jokes, and disparaging or distasteful comments based on someone’s race are unlawful. This can create a working environment that is substantially intimidating or hostile.
Religion. Similar to other kinds of discrimination, employers cannot hire, fire, or influence the employment terms or conditions based on an employee’s religion. Moreover, an employer has to make reasonable accommodations for particular religious beliefs and practices. That is, unless the accommodation establishes too much hardship on the employer. These hardships may include an employer having to change a job assignment, make room for new dress codes, etc.
Sex. Employees have the right to stand against sexual discrimination and harassment. There is sexual discrimination when an employer hires, fires, or generally discriminates against an employee due to their sex. This also covers discrimination based on pregnancy, childbirth, or a connected medical condition. It also applies to discrimination due to perceived or actual sexual orientation (heterosexuality, bisexuality, homosexuality, or asexuality).
Note that sexual harassment is also a kind of sex discrimination. If an employee experiences motiveless and unwanted sexual advances from anyone in the office, he or she is a sex discrimination victim. On the same vein, it is illegal for an employer to require that an employee engage in sexual relations as a foundation for decisions on employment or job continuance. Employees can also charge for sex discrimination if the sexual conduct of an employer impedes an employee’s ability to perform his or her job or sets a work environment that is offensive, hostile, or intimidating.
Of course, employers have the right to monitor and supervise their employees while in the workplace. Employers have a justifiable interest in checking on the productivity levels of their employees, so they can avoid probable liability for the unlawful actions of their employees. So employers can monitor an employee’s use of the phone, transmissions through fax, use of voicemail, use of the internet, and communicating via email. In addition, employers can install surveillance cameras and even test their employees for use of alcohol or drugs. Employers should make known to their employees that they should not expect privacy in these aspects.
However, employers need to keep some particular information about an employee private, such as personal characteristics or family matters. Furthermore, employees have the right to not have their personal information disclosed, such as psychiatric, medical, or psychological records.
If an employer, nevertheless, has the suspicion that an employee is doing some illegal activities at work (sexual harassment, theft, or alcohol and drug use), employers must start the investigation into the conduct. Whenever employers investigate their employees, they should use objective standards, delegate investigation to a supervisor not directly involved in the activity nor supervises the employee, keep the investigation results private, and document the investigation completely.
Safe Working Conditions
It is understood that employees have the right to work in safe conditions. Based on the Occupational Safety and Health Act or OSHA, employers have the responsibility to provide a safe and healthful working environment. OSHA guarantees that workplaces are safe and healthful through the provision and enforcement of standards.