7
Regulatory Issues
What Are the Major Employment Laws and How Do I Comply with Them?

ONE OF THE MOST CHALLENGING TASKS you will face in human resources management is complying with employment-related laws. Not only are there countless federal laws governing all aspects of the employer/employee relationship, but there are also various state and local laws that expand upon federal employee protections or place requirements on employers in areas not covered by federal law.

Throughout this book, there are references to employment laws that relate to specific topics as they are discussed. In this chapter, we cover some of the other major federal laws. You will gain a sense of the broad reach of these laws and learn to spot potential problem areas within your company. Be sure to check with an attorney regarding the specific laws that apply in the state where your main business office is located, and in any other state in which your company employs workers.

LAWS PROHIBITING DISCRIMINATORY PRACTICES

In 2009 alone, there were more than 93,000 charges of discrimination filed with the Equal Employment Opportunity Commission (EEOC) under the various federal antidiscrimination laws, resulting in hundreds of millions of dollars in settlement costs to companies. This settlement amount does not even include damages related to claims that actually made it to court—where employers incurred countless additional millions of dollars in damages for engaging in discriminatory employment practices.

While there is no way to completely prevent employees from claiming that they were discriminated against, there are ways to greatly decrease your potential for liability. Among them:

• Understand the basics of federal, state, and local statutes regarding discrimination and seek counsel in specific instances when questions arise.

• Create strong antidiscrimination and harassment policies and communicate them throughout the organization. Employers are required by law to conspicuously post notices advising employees of their rights under the laws enforced by the EEOC.

• Train executives, managers, and supervisors regarding proper workplace conduct and how to deal with actual or suspected violations.

• Evaluate the underlying business reasons for employment policies, procedures, and practices that you institute to ensure that they are driven by legitimate and not discriminatory motives.

• Establish a work environment where discrimination, harassment, and retaliation of any kind are not tolerated. Investigate all discrimination complaints seriously and deal with wrongdoers appropriately and consistently.

“What are the primary federal antidiscrimination laws?”

The most significant laws affecting employers are:

• Title VII of the Civil Rights Act of 1964, prohibiting employment discrimination based on race, color, religion, gender, or national origin

• Age Discrimination in Employment Act of 1967, outlawing discrimination against workers age forty and older

• Americans with Disabilities Act of 1990, protecting qualified individuals with disabilities

• Fair pay laws, including the Equal Pay Act of 1963, mandating that men and women who perform substantially equal work for the same employer under similar working conditions receive substantially equal pay, and the Lily Ledbetter Fair Pay Act of 2009, which provides additional protections to victims of discriminatory pay practices

• Title II of the Genetic Information Nondiscrimination Act of 2008, prohibiting genetic information discrimination in employment

“What types of discrimination do the federal antidiscrimination laws protect against?”

Federal laws prohibit discriminatory practices that may arise in all aspects of the employment relationship, including:

• Recruitment, hiring, and firing

• Compensation, fringe benefits, assignment, and classification of employees

• Transfer, leave, promotion, layoff, or recall

• Testing

• Use of company facilities

• Training

• Any other term or condition of employment

The antidiscrimination laws also make illegal any harassment on the basis of an individual’s membership in a class protected by any of these laws or association with a person in a protected class. They also prohibit retaliation against a worker for filing a charge of discrimination or participating in an investigation or taking actions that oppose discriminatory practices in the organization.

Title VII of the Civil Rights Act of 1964

“Who does Title VII apply to, and what types of discrimination do the laws prohibit?”

Title VII applies to all private employers, state and local governments, and educational institutions that employ at least fifteen workers. The laws prohibit employment discrimination on the basis of race, color, gender, religion, or national origin. While blatant, direct discrimination is usually easy to spot, it is often more difficult to determine whether certain outwardly “neutral” policies, practices, or decisions will have an unfair impact on specific categories of employees. You may be held liable for actions that have a disproportionate impact on one or more protected categories of worker unless you can demonstrate that the basis for the action is job-related and serves a legitimate business purpose.

• Race and color discrimination. Title VII makes it illegal to discriminate in employment against individuals of a particular race or color. For example, you cannot refuse to hire someone because he is Asian, or deny someone career development opportunities because she is Caucasian. The law also forbids discrimination on the basis of stereotypes about the characteristics of members of a specific race, such as assumptions that members of some racial groups do not work as hard or are less honest than others.

In addition, Title VII prohibits discrimination based on an unchangeable characteristic associated with race, such as skin shade, hair texture, or certain facial features. Therefore, since African-American men are prone to a condition under which they develop severe shaving bumps, a “no beard” policy may be found to violate Title VII unless you can show a sound, job-related reason for having this policy—such as a restaurant adhering to local health codes.

• Religious discrimination. Under the religious discrimination laws, you cannot consider an employee’s religion in making hiring decisions. In addition, when requested by employees, you must accommodate their religious practices unless doing so would cause an undue hardship for the company. Reasonable accommodations may include providing workers time off for religious observances or providing a place to pray. You do not have to accept the particular accommodation requested by an employee; you are free to substitute a different one if it would serve the same purpose. There is no set definition of what constitutes “undue hardship,” but generally under Title VII, if the accommodation would cost you more than a minimal sum, you are not required to make the accommodation. Keep in mind, however, that some state laws hold employers to a higher standard to demonstrate undue hardship, such as showing that accommodating the employee would require significant difficulty or expense.

• National origin discrimination. National origin discrimination means treating someone less favorably or more favorably because of the place where he is from, or because she has a common ancestry with people from a particular place. There are several components of national origin discrimination to which employers should pay particular attention when setting rules or policies or making other employment decisions.

• Foreign accents. Employment actions based on an individual’s accent are permitted only when the accent affects the ability to perform job duties. You cannot discriminate merely because a person speaks with an accent—the accent must interfere with communication skills and effective communication skills must be necessary for the job. Teaching and telemarketing positions are among those that may require effective oral communication skills, but you should never generalize. Always look at individual circumstances to determine whether a worker’s accent realistically bars her from doing an effective job.

• English fluency requirements. Similar to rules regarding foreign accents, you can require employees to be fluent in English only if fluency is a real and reasonable requirement for the job. While English fluency may reasonably be required of a salesperson, it is harder to argue that it is needed for a janitorial position.

• English-only requirements. Some companies choose to adopt policies allowing only English to be spoken at the workplace. These policies are allowable if they are not implemented for discriminatory reasons and the rule is needed for the business to run safely and efficiently. Therefore, while a policy requiring bank tellers to speak English to the bank’s English-speaking customers is appropriate, a policy requiring the same tellers to speak only English during breaks is unacceptable. If you have an English-only policy, you must notify employees of the rule as well as the consequences for violation.

• Citizenship requirements. Title VII does not specifically outlaw discrimination based on citizenship, but it does prohibit using citizenship as a pretext for discriminating on the basis of national origin. Because the line between citizenship and national origin is often quite murky, we do not recommend that you adopt such a rule.

• Gender discrimination. Gender discrimination covers gender-based employment decisions, sexual harassment, and pregnancy discrimination.

• Sexual harassment. Sexual harassment law can be complex because illegal harassment can take many forms and encompass a variety of subtleties. While sexual harassment claims are most frequently filed by women, the victim—as well as the harasser—can be either male or female, and there is no requirement that the victim and the harasser be of opposite sexes. According to the EEOC, the harasser can be the victim’s supervisor, coworker, a supervisor in another area, or agent of the victim’s employer. In fact, the victim does not even have to be the person actually harassed, but can be anyone who is negatively affected by the offensive conduct.

“What types of conduct do the sexual harassment laws prohibit?”

In general, behavior constituting sexual harassment falls into two categories: quid pro quo and hostile environment. The line between the categories is not always clear, and it is possible for both types of harassment to occur together.

1. Quid pro quo describes situations in which the victim’s engaging in sexual conduct with the harasser becomes the basis of the employment decision. Examples of quid pro quo harassment are a supervisor saying, “Have sex with me and you will get the promotion” or “If you don’t have sex with me you will be fired.”

2. Hostile environment situations are those where sexual conduct is not a prerequisite for an employment decision, but the working environment is so pervaded by discrimination, insult, or abuse that it becomes unpleasant or threatening for employees to do their jobs.

Quid pro quo harassment is relatively simple to define and determine, whereas hostile environment harassment is often ambiguous and complex. Hostile environment claims make up the majority of sexual harassment complaints. Conduct that is considered sexual harassment comes in many forms, including:

• Sexual advances or requests for sexual favors

• Verbal or physical contact that is sexual in nature (e.g., pornographic pictures in the workplace, lewd or offensive jokes shared verbally or through office e-mail exchange)

• Blatant hostility toward an employee or group of employees because of their gender (a situation that often occurs when women work in jobs or environments that were previously occupied solely by men)

For conduct to be considered illegal sexual harassment, it must be unwelcome, severe, and pervasive in the workplace. Unwelcome behavior is that which the affected party does not solicit and finds offensive or undesirable. While true consensual sexual relationships are not harassment, just because an employee agrees to the activity does not automatically make the relationship consensual. If an employee voluntarily entered into a sexual relationship with her supervisor because she feared losing her job if she did not comply, she may have a valid legal claim. Even more problematic is the situation where a sexual relationship is initially consensual, but later one of the employees wants to end the relationship and the other persists in sexual conduct. Behavior that persists past the point where it is consensual for both parties is sexual harassment.

To be considered severe, the conduct must be serious enough that a “reasonable person” would find it offensive. This standard precludes the hypersensitive person from successfully claiming injury from an innocuous remark or action. “Pervasive” behavior means that it is persistent in the workplace rather than occurring in isolated instances. A male employee asking a female coworker on a date one time is not harassment, even if the woman makes clear she is not interested, but repeated requests can develop into a harassment situation. Conversely, only one instance of groping or one quid pro quo demand can give rise to an actionable harassment claim.

“When will the employer be held liable for sexual harassment?”

As an employer, you will be automatically liable for any harassment that leads to a significant change in employment status, such as hiring, firing, promotion, or demotion. If the harassment does not lead to a significant change in employment status, you will held responsible unless you can prove that:

• You exercised reasonable care to prevent and promptly correct the harassment.

• The employee unreasonably failed to complain to management or otherwise avoid harm.

“What steps can I take to prevent and correct harassment in order to minimize my risk of liability?”

Most important, you need a written policy prohibiting workplace harassment. While there is no specific form of policy required under the laws, yours should have the following elements:

• A statement that the company will not tolerate harassment, whether sexual or based on religion, race, national origin, age, or disability

• Direct assurance that there will be no retaliation against those reporting harassment

• A clear procedure for reporting complaints and conducting investigations

• A statement that although the organization will protect the confidentiality of all parties to a complaint to the extent possible, it may have to share certain information with those with a need to know

Your complaint procedure should designate more than one individual to whom the employee can report harassment, preferably both male and female, so that complaining employees can select individuals with whom they feel most comfortable. The EEOC has specifically stated that it is not enough that the harassment policy instruct employees to inform their supervisors of harassment; after all, it may be the supervisor who is committing the harassment in the first place! You might consider designating people from a variety of areas in the organization to receive complaints, such as members of the executive staff, legal staff, and human resources staff, and providing a form for employees to fill out to report complaints in writing for those who may not feel comfortable making a face-to-face complaint. A sample complaint form is included in the Tools and Templates section of this book. Some companies successfully use an independent hotline service so employees can report violations to impartial, outside parties.

Some states require employers to conduct mandatory sexual harassment training for managers and supervisors. Inquire whether any harassment education laws exist in your state.

It is essential to conduct a fair and comprehensive investigation of all employee complaints. (See Chapter 8 for more information on effective workplace investigations.) During the investigation, take steps to keep the complaining and the accused parties apart. Reasonable steps may include assigning one or both individuals to different work areas to minimize the opportunity for contact, or placing the accused on paid leave pending the results of the investigation.

If, as a result of the investigation, you determine that harassment has occurred, you must take immediate action to end the harassment and keep it from happening again. The discipline meted out to the harasser should correspond with the seriousness of the offense.

Don’t wait until a complaint is filed to work toward eliminating harassment or inappropriate conduct in your organization. Train managers and supervisors to recognize and report harassment and to handle complaints. If you are aware that employees are using the company e-mail system to distribute questionable jokes or that there are sexually graphic pictures hanging in the men’s locker room, act now before an incident occurs.

“If an employee does not complain, can the company still be held liable for harassment?”

Yes, if the failure to complain was reasonable under the circumstances. Generally, an employee is required to take reasonable steps to avoid the harassment and to keep it from becoming worse. Therefore, if an organization has a sound antiharassment policy with clear complaint procedures, the affected employee will normally be expected to use the designated complaint procedure unless there are legitimate reasons for not using it. Legitimate reasons can include fear of retaliation or the knowledge that the company had not acted to investigate and deal with harassment complaints in the past.

It is the employer’s responsibility to prove that the failure to complain of harassment was unreasonable. If you create a workplace environment where an employee feels comfortable filing a complaint and knows that you will take the complaint seriously without retaliation, it will be harder for an individual to justify failure to report a problem.

“Can I ever fire a pregnant woman?”

Yes, but not because of her pregnancy. You may properly terminate her employment for performance reasons, layoffs, or any other legitimate circumstances; however, it is important to determine that these conditions are legitimate rather than a pretext for discrimination.

An amendment to Title VII, the Pregnancy Discrimination Act, prohibits discrimination against women because they are pregnant or experience conditions or take leave related to pregnancy. If an employee is temporarily unable to perform her job because of her pregnancy, you are required to make reasonable accommodations, such as modifying her tasks or providing disability leave without pay. When the employee takes a pregnancy-related leave of absence, employers are required to hold her job open for the same period of time as jobs are held open for other sick or disability leaves. Health insurance benefits must cover expenses for pregnancy-related matters to the same extent as coverage is provided for other medical conditions. It is illegal to limit pregnancy benefits to married employees.

“What is this I hear about Title VII reporting requirements?”

If you are a private employer with one hundred or more employees, or a federal contractor with at least fifty workers, you are required to file an EEO-1 employer information report with the EEOC by September 30 of each year. The EEO-1 report provides a breakdown of your workforce by gender, racial/ethnic classification, and job category. You may use employment figures from any pay period from July through September, including both full- and part-time employees.

If you have collected any information from employees after they were hired that identifies their race or ethnicity, you should use this data for your EEO-1 report. If you do not have this data, you are permitted to take a visual survey of your workers and make your best guess as to each worker’s race/ethnicity. The EEOC does not recommend that you ask employees directly, but encourages you to provide employees a written form on which they may choose to voluntarily self-identify. A sample of this type of form is included in the Tools and Templates section of this book.

Age Discrimination in Employment Act of 1967 (ADEA)

“Who is covered by ADEA and what types of discrimination does the law prohibit?”

The ADEA applies to all employers with twenty or more employees, including state and local governments. It protects individuals age forty and over from discrimination in employment on the basis of age and from retaliation for making a complaint or participating in an investigation concerning age discrimination.

The restrictions of ADEA are very similar to the prohibitions of Title VII. As with the Title VII laws, employers can be held liable for outwardly neutral policies that have a disproportionate impact on older workers. If you have a policy or practice that tends to have a negative impact on protected employees, make sure you can articulate a valid business reason for maintaining it.

“Is it ever acceptable to make employment distinctions based on age?”

Yes, under very limited circumstances. Age limitations are allowed when age is a bona fide occupational qualification that is reasonably necessary to operate the business. A movie casting agent seeking to cast a role of a young man would not be required to interview or hire older males for the part. Employers may also enforce bona fide seniority systems as long as these systems are not intended to evade the intent of ADEA. In addition, it is allowable to reduce benefits paid based on age if the cost of the reduced benefits for older workers is the same as the cost of providing benefits to younger workers.

“Can our company adopt a mandatory retirement policy?”

No, it is illegal to require an employee to voluntarily retire at a particular age unless age is a bona fide occupational qualification for performing the job.

“Can workers elect to waive their rights under the ADEA?”

Yes, but the waiver must be voluntary and the employee must understand the significance of the document. A valid waiver must be in writing, must specifically refer to ADEA claims, must be in exchange for valuable compensation or other benefits given to the employee, must advise the individual in writing to consult an attorney before signing the waiver, and must provide the individual with at least twenty-one days to consider the agreement and seven days after signing to revoke the waiver. You cannot ask employees to waive future rights or claims. If you are requesting a waiver in connection with an early retirement program or other voluntary termination incentive, there are additional requirements in order for the waiver to be considered proper.

If you are considering requesting an employee to execute an ADEA waiver, consult with an attorney, both to ensure that a waiver is appropriate under the circumstances and that the waiver document complies with the law.

The Americans with Disabilities Act of 1990 (ADA)

“Who is covered by ADA and what types of discrimination does this law prohibit?”

The ADA covers employers with fifteen or more employees. The law prevents employers from making employment decisions that discriminate against qualified individuals with disabilities.

The ADA also prohibits employers from retaliating against individuals asserting their rights under the ADA, and from discriminating against people because of their family or other relationship with a person with a disability. Employers cannot refuse to hire a person with a disabled spouse because of concerns about medical costs or fear that the spouse will cause the employee to miss time from work. In 2008, the Americans with Disabilities Act Amendments Act of 2008 (“ADA Amendments Act”) was enacted. The ADA Amendments Act, which applies to discriminatory acts occurring after January 1, 2009, broadened the definition of “disability” under the ADA, emphasizing that the definition of disability should be interpreted broadly and without extensive analysis.

To be protected by ADA, the individual must (1) have a covered disability and (2) be qualified to hold the position in question.

“What is a covered disability under ADA?”

According to the EEOC, a disability is a physical or mental impairment that limits major life activities. This definition covers impairments to hearing, speaking, sight, breathing, performing manual tasks, walking, reading, bending, eating, lifting, communicating, caring for oneself, learning, or working. Impairments to major bodily functions are also considered disabilities under the ADA, including functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. Temporary or minor impairments do not qualify as disabilities under ADA. If an employee has a broken arm that prevents him from performing his job on the loading dock, this is not a protected disability.

“Who is considered a ‘qualified individual’ under the law?”

Qualified workers or job applicants must have all the experience and background required by the position. They must have the required degrees, skill, training, and knowledge to perform the essential functions of the job, with or without accommodations. There has been much confusion among employers about what constitutes essential functions and what constitutes minor, noncritical job functions. If you have job descriptions, the major duties listed in these documents are the essential functions. When determining whether specific persons are qualified, it is important to look at whether tasks they cannot perform are really critical functions or ones incidental to the position.

The ADA does not require that you hire a qualified applicant over other applicants or promote a qualified worker over other workers just because that individual has a disability. The law only prohibits discrimination on the basis of the disability. It makes it unlawful to take adverse employment actions based on an individual’s disability or need for a reasonable accommodation.

“What reasonable accommodations are employers required to make?”

Employers must make reasonable accommodations for employees with disabilities unless making the accommodation would cause the company undue hardship. A reasonable accommodation is any change in the work environment or the way a job is performed that would allow a person with a physical or mental disability to enjoy equal employment opportunities. An employer must consider a reasonable accommodation upon the written or verbal request of an employee (or the employee’s physician). In situations involving obvious disabilities, you may ask the employee whether reasonable accommodation is needed.

The following are examples of types of reasonable accommodations that you might be required to make:

• Restructuring a position. This can include shifting minor functions of a position that the employee with a disability cannot perform to other employees who can perform them, or altering when and how the job is performed. You are not required to restructure a position to eliminate a primary job responsibility.

• Making existing workplace facilities accessible. Federal and state regulations require employers to adhere to specific standards to make their facilities accessible for persons with disabilities. In addition, an employer may be required to make modifications above and beyond those required by these laws to accommodate the specific needs of its employees.

• Providing unpaid leave. If an individual’s disability requires unpaid leave, providing this leave may be a form of reasonable accommodation, provided it does not cause your company undue hardship. Persons returning from leave should be reassigned to the same position unless, again, it would cause an undue hardship. You are not required to provide more paid leave to accommodate a person with a disability than you provide for other employees.

• Providing a modified schedule. This accommodation may involve adjusting arrival and/or departure times, part-time hours, or periodic breaks, or changing the time of day at which certain tasks are performed.

• Reassignment. Unless you can show that it would cause undue hardship to the company, you may be required to reassign an employee who can no longer perform essential job functions because of a disability to a vacant position with responsibilities that the individual can perform. Whenever possible, this new position should be of equal pay and status. You are not required to create a new position, promote the employee, or bump other employees to provide this accommodation. Moreover, the individual must be qualified for the new position. You need not provide additional training to enable an unqualified individual to become qualified.

Providing reasonable accommodation can also mean offering employees with disabilities benefits comparable to those offered to other employees. For example, if you provide training to comparable workers, then you must modify the programs, if necessary, to accommodate individuals with disabilities. Examples are providing an interpreter or making training manuals available in braille or on audiotape. Both in-house and outside facilities must be made accessible. Holding your training in a contracted facility or using consultants to conduct the workshops does not excuse you from this responsibility. If your workplace has a cafeteria, lounge, auditorium, or company-provided transportation and counseling services, they must be made accessible to employees with disabilities or you must provide an alternate facility to accommodate them, unless doing so would cause undue hardship.

“What is ‘undue hardship’?”

This is the standard by which the EEOC and the courts determine whether a specific accommodation is reasonable. Undue hardship can include significant financial expenditures or measures that would be unduly extensive or disruptive or significantly alter the nature or operation of the business. Each request for a reasonable accommodation should be evaluated individually, taking into consideration the cost of the accommodation, the resources of the employer, the effect on the business, and the impact on other employees. What constitutes undue hardship for one employer will not necessarily constitute it for another. A small start-up business is held to different standards than a multinational corporation. However, a company may never claim undue hardship based on the fears of employees or customers, or their prejudice toward individuals with a specific disability.

“How can I work with my employees to develop appropriate reasonable accommodations?”

The establishment of a reasonable accommodation should result from an interactive process between employer and employee that clarifies the scope of the disability and the specific need for accommodation. You are only obligated to provide reasonable accommodation if you are aware that a disability exists. When disabilities are not obvious, it is up to the individuals to disclose their conditions to you if they feel they need a reasonable accommodation. There is no obligation on the part of the individual to disclose a disability or request an accommodation, but if he later fails to meet the requirements of the job because he did not have the necessary accommodation, this is not the employer’s fault. You may not ask applicants or employees about their disabilities during the interview process or after employment (see Chapter 1).

Frequently, an employee will suggest a workable accommodation. Other times, the individual will not know exactly what accommodation is needed and you will need to examine the alternatives together. If there is more than one alternative accommodation that would allow the employee to perform the functions of the job, you may choose the least burdensome and/or least expensive option.

Employers may incur significant legal liability and financial penalties for failing to make reasonable accommodations for an employee with a disability. Therefore, if you are in doubt about whether you are required by law to make a specific accommodation, consult with an attorney before denying the request.

The Equal Pay Act of 1963 (EPA)

“Who does the EPA apply to and what are its major provisions?”

The EPA applies to virtually all employers. Under this law, employers must pay equal wages to men and women who perform jobs requiring substantially equal skill, effort, and responsibility under the same working conditions in the same establishment. Here’s what these terms mean under the law:

• Skill. When comparing the skill sets of two workers, it is important to look at the skills that are necessary for the job, not the total skills possessed by each of the individuals. For example, if a man and a woman are both staff accountants with bachelor’s degrees in accounting and ten years’ accounting experience, you cannot use the fact that the man has a Ph.D. in English to justify his higher pay rate, because this graduate degree is not related to the job requirements.

• Effort. This pertains to the amount of physical or mental exertion it takes to do the job. If you have two individuals in quality inspection positions, but one of them is inspecting small products and the other is examining heavy machinery that he needs to lift, you are permitted to pay the second inspector more than the first.

• Responsibility. This refers to the amount of accountability inherent in the position. If only one of two restaurant servers is permitted to handle cash, the increased responsibility justifies payment of a higher wage. If the difference in responsibility is minor—say, for example, that one server is designated to answer the telephone—higher pay is not justifiable.

• Working conditions. Working conditions comprise both physical surroundings and hazards. If a hospital employs two nurses’ aides, one working in a children’s ward and one with violent patients, the increased risk incurred by the second aide could merit a pay differential.

• Establishment. An establishment, according to the EEOC, is a “distinct physical place of business.” You can generally pay diverse wages to employees doing the same job in different states.

In addition, you may pay employees varying wages if they are based on factors other than sex, such as seniority or merit, but it is your responsibility to prove that you are using valid rather than discriminatory criteria. Audit your salary structure periodically to make sure you are not inadvertently violating the EPA. If you find that your payroll practices need adjustment, you may not reduce the pay of the higher-paid employee but must raise the wages of the lower-paid worker.

The Lily Ledbetter Fair Pay Act of 2009

The Lily Ledbetter Fair Pay Act of 2009 extends the time available to the victim of discriminatory pay practices to file an equal pay lawsuit under federal antidiscrimination laws. This law provides that an act of discrimination occurs with the issuance of each new discriminatory paycheck rather than on the date that compensation was agreed upon by the employer and the employee. Therefore, the statutory 180-day period to file a complaint arises anew on each pay day.

Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA)

Title II of GINA prohibits discrimination against employees due to genetic information, prohibits the use of genetic information in making employment decisions, restricts employer access to genetic information, and limits disclosure of such information. An employer may never use genetic information to make an employment decision, because genetic information does not reveal to the employer anything about the employee’s current ability to work. GINA also forbids harassment or retaliation due to genetic information.

“What is ‘genetic information’ under GINA?”

Genetic information includes information about the potential or current employee’s genetic tests and genetic tests of that individual’s family members, as well as information about any disease, disorder, condition, or other aspect of the medical history of the individual’s family members. Family history is included in the definition of “genetic information” because it is frequently used to determine whether someone has an increased risk of developing a particular disease or condition in the future.

“Can an employer ever acquire genetic information about an employee or his or her family members?”

Yes, but only under limited circumstances. These include genetic information:

• Inadvertently acquired without violating GINA, such as when one employee overhears another discussing a family member’s illness.

• Obtained as part of health or genetic services, including wellness programs, offered by the employer on a voluntary basis.

• Acquired as part of the certification process for FMLA leave (see the next section) or leave under similar state or local laws, where an employee is asking for leave to care for a family member with a serious health condition.

• Learned through commercially and publicly available documents like newspapers. However, the employer cannot search these documents with the intent of finding genetic information.

• Acquired through a genetic monitoring program that monitors the biological effects of toxic substances in the workplace, where the monitoring is required by law or strictly voluntary.

• Obtained by employers who engage in DNA testing for law enforcement purposes as a forensic lab or for purposes of human remains identification, but there are significant restrictions on the use of this information.

If you acquire genetic information concerning your employees, you are obligated to keep this information confidential and separate from the individual’s employment file, though you may use the same file as you use to keep ADA-related information.

THE FAMILY AND MEDICAL LEAVE ACT

The Family and Medical Leave Act (FMLA) allows covered employees to take up to twelve weeks’ unpaid leave of absence per year and requires employers to protect the employee’s job and continue health benefits coverage during the periods of leave. The law recognizes that workers may experience health and/or family situations that necessitate a leave of absence. It was designed to help employees achieve a balance between their work lives, their health, and personal considerations.

Many states have laws similar to the FMLA, some providing more generous benefits than the federal laws, which are administered by the U.S. Department of Labor. If you are in a state with leave regulations that differ from those of the FMLA, you are required to give your employees the benefit of whichever law offers the most generous protection.

Employers must post notices informing workers of their FMLA rights in prominent places in work facilities, as well as provide notice either in the employee handbook or upon hire. In 2009, new regulations under the FMLA were enacted that provide additional notice and proof of medical condition requirements in order to help employers combat FMLA abuse. To take advantage of these protections, you must follow the posting requirements and update your policies and forms to comply with the new regulations, and have employees sign a form acknowledging receipt of this information.

“Which employers/employees are covered by the FMLA?”

The Family and Medical Leave Act covers employers with fifty or more full- or part-time employees on the payroll. It covers all public agencies and public or private elementary and secondary schools. To be eligible for FMLA coverage, an employee must:

• Have worked for the organization for at least twelve months

• Have worked for the organization at least 1,250 hours during the previous twelve months

• Work in a location where the company has at least fifty employees working within a seventy-five-mile radius of the location

“When can an eligible employee take FMLA leave?”

Leave is restricted to certain defined conditions:

• Birth, adoption, or foster care. Employees becoming parents through birth, adoption, or foster care placement may take a leave of absence within one year after the arrival of the child. In certain situations, the expectant parents can begin the leave before the child arrives. The leave is available to both men and women, but if the husband and wife work for the same employer, their leave may be limited to a combined twelve weeks.

• Serious health condition of the employee. The condition must render the employee unable to do his or her job. The law is quite specific and complicated regarding the types of health conditions that qualify for FMLA leave, but generally these conditions include inpatient care, periods of more than three days where the employee is unable to function normally and is under the care of a doctor, pregnancy or prenatal problems, or other material health issues.

• Serious health condition of a family member. If a family member has a serious health condition, the employee may take leave to care for this individual. “Family member” under the law is limited to parents, children, or spouses. Other family members and domestic partners are not included.

• Military status of a family member. The FMLA was amended in 2008 to extend coverage to employees to care for a family member injured while on active military duty and to take time off in the event of a family member’s call to active duty.

“How should employees request FMLA leave?”

Employees should give notice at least thirty days in advance for leave that is foreseeable (such as birth or adoption of a child), or as soon as possible for leave that is unforeseeable (such as emergency personal or family health issues). The notice should specify the reasons for the leave in sufficient detail to allow the employer to determine whether the reasons for the leave qualify under FMLA and the expected duration of the leave.

“Can I request confirmation of a serious health condition?”

When the leave involves a personal or family health concern, you may request that the worker provide medical certification, allowing the employee at least fifteen days to comply. If the worker fails to provide the certification within the time provided or an otherwise reasonable time, you may delay the leave until you receive the information. The Department of Labor has available FMLA request and medical certification forms that you may require the employee to use. If the employee’s medical certification is lacking in detail, you must notify the employee in writing about the insufficiency of the information provided and give the employee seven days to provide complete information. While in the past, employers were not allowed to contact the employee’s health care provider directly to request details of the health condition, new regulations allow employers to contact the health care provider directly to clarify or authenticate a medical certification after the employee has been given the chance to cure any deficiencies in the information provided. You may not request information beyond what is in the certification form. Most health care providers are required under HIPAA to obtain authorization from the employee to release patient medical information, but if the employee refuses to provide this authorization and otherwise fails to provide satisfactory certification, you may deny the leave.

“What are the circumstances under which employees can request leave due to a family member’s military status?”

The FMLA military leave provision generally permits employees to take up to twenty-six weeks of leave to care for a family member who is injured in the line of active military duty, and up to twelve weeks of leave if a “qualified exigency” occurs. A qualified exigency is a permitted reason to take time off in connection with a family member’s call to active duty. Qualified exigencies include:

• Short-notice deployments (notice of seven days or fewer)

• Military events (ceremonies, briefings, etc.)

• Financial/legal arrangements related to the call to duty

• Counseling related to the call to duty

• R&R leave (up to five days)

• Postdeployment activities (ceremonies, briefings, etc.)

• Such other activities as the employer may permit

“Do I have to give employees anything in writing when they request an FMLA leave?”

You must provide the worker with a timely written notice specifying employee rights and obligations under the law, preferably within two business days. If you don’t provide a notice in a timely manner, you may not be able to deny the leave, even if the employee was not eligible. The notice must specify:

• Whether, and how much of, the time off will count toward the FMLA entitlement.

• Requirements for submitting medical certification and the consequences of failure to do so.

• The employee’s right to substitute paid leave, such as vacation time and sick days. As the employer, you may require that available paid leave be used first, provided you notify the individual of this requirement.

• Whether you require a medical certification of fitness to return to duty upon the employee’s return from a personal medical leave.

• The employee’s right to restoration to his or her position or substantially equivalent position upon return from leave.

• Whether the employee is a “key employee” under the FMLA. Key employees are those salaried employees in the top 10 percent of the company’s pay range. The law takes into account that these individuals may be so important to the organization that their extended absence would cause the organization substantial harm. You do not have to guarantee restoration of position to these employees as long as you notify them of their key employee status when they request the leave. You must still give the key employee a reasonable opportunity to return to work from FMLA leave.

• Requirements for making any contribution for health care premiums and consequences for failure to pay on time. You may only require copayments at the same level the employee was required to make prior to the leave.

• Whether workers have the obligation to repay the employer if they do not return to work. This notification applies if your company is paying any portion of employee health care premiums during the leave.

“Can I inquire about employee status during the leave?”

Yes, it is totally acceptable to maintain contact with workers during their leaves, but you cannot contact medical providers or other third parties. You may, with advance notice, require employees to contact you periodically to report on their status, as long as you require all employees on FMLA leave to do so. Requesting that only certain workers report in may be viewed as discriminatory. You may also, with notice, require subsequent medical certifications, but not more frequently than every thirty days.

“Do employees get their jobs back after they return from leave?”

By law, you are required to hold the individual’s position open or provide an equivalent position upon her return. An equivalent position is considered one that is virtually identical to the previous one in pay, benefits, working conditions, and status. There are many additional factors that determine whether a job is equivalent, such as duties, location, schedule, fringe benefits, skill, and authority. In some situations it will be easy to offer an equivalent role, especially if an organization has many positions in a particular job category. When a position is highly specialized, it may be harder to prove that a new position is equivalent. Although it may be expensive and inconvenient to hold a job open, if you are not sure that you can provide an alternative position that is truly equivalent, you may have no other choice.

“Can you fire an employee on FMLA leave?”

Yes, under proper circumstances. Although you cannot take any adverse action because an employee is on leave, you are allowed to take any employment actions that you would have otherwise taken if the employee had been on the job. If you conduct a layoff during the leave period and you have valid reasons for eliminating the position, you may do so and you will not be obligated to offer an equivalent job. Your obligations to the employee will end on the date of the layoff—except that you will be required to offer the same termination benefits offered to other laid-off employees. In this situation, be sure to document the legitimate reasons for eliminating this position in the event of future legal challenges.

OCCUPATIONAL SAFETY AND HEALTH ACT OF 1979

As an employer, you are no doubt concerned about keeping your workplace safe for your employees, your vendors, and your customers. The Occupational Safety and Health Act (OSH) was enacted to set certain national standards and guidelines to promote safe and healthful workplaces. The Occupational Safety and Health Administration (OSHA) administers OSH regulations. OSHA has two primary functions: to set workplace safety and health standards and to conduct inspections to ensure that employers are complying with those standards.

Virtually all businesses with employees are required by OSHA to maintain a safe workplace. In addition, OSHA has industry-specific standards that relate to the particular hazards present in that industry. States are allowed to have their own safety plans provided they are at least as protective as the federal regulations. If your business is in a state with its own plan, you must follow state laws. If your state does not have a safety plan, the federal guidelines will apply to you. For more information on applicable state laws, contact your state’s labor department.

OSHA standards are divided into four major categories: general industry, construction, maritime, and agriculture. General industry requirements also apply to construction, agriculture, and maritime businesses unless the business category has its own standards on the subject.

Since laws relating to individual industries are broad and complex, we will limit our discussion to general industry requirements. You can obtain detailed information about specific industry standards directly from OSHA.

“What are my basic responsibilities under the OSHA regulations?”

All employers are charged with a general duty to maintain a safe workplace, free of hazards that are likely to cause death or serious physical harm. This means you are responsible for making your workplace safe, even if your business is not subject to industry-specific OSHA regulations. In addition, you must conspicuously post notices informing employees of their workplace safety rights.

Personal Protective Equipment. You must supply employees, at company expense, with personal equipment for protection against certain hazards. Depending on the industry and the hazards involved, this can include helmets to prevent head injury, goggles for eye protection, or respirators for potential airborne hazards.

Hazard Communication. If you manufacture, import, or work with hazardous materials, you are required to conduct an evaluation of these materials and to properly label them if they present sufficient risk under the law. You must include a material safety data sheet (MSDS) in your first shipment to a new customer. Manufacturers and users of hazardous materials must use the MSDS to train their employees to recognize and safely handle them.

Access to Medical and Exposure Records. You are obligated to grant any employee of yours access to any medical records you maintain regarding that employee, including records maintained about the employee’s exposure to toxic substances.

Record Keeping and Reporting. All employers with more than ten employees (with the exception of certain low-hazard employers in industries such as retail, finance, insurance, real estate, and certain service businesses) must maintain OSHA-specified records of job-related injuries and illnesses. You can purchase effective software to facilitate your tracking and record-keeping obligations. Employers in all industries are required to report to OSHA, within eight hours of occurrence, any accident that results in a worker’s death or in the hospitalization of three or more employees.

“Will OSHA come to inspect my business?”

Unless you are engaged in what OSHA considers a low-risk industry, OSHA may conduct regularly scheduled “programmed inspections” of your facility to determine whether you are compliant. If you have fewer than ten employees, you will be exempt from programmed inspections unless you have had a poor safety record in the past.

Any company may be subject to an OSHA inspection if:

• It has reported an accident involving a worker’s death or the hospitalization of three or more employees.

• OSHA receives a complaint from an employee or other party. Under the law, OSHA is permitted to keep the identity of any complaining employee confidential. You are not permitted to retaliate against any employee for filing a complaint or participating in an OSHA investigation.

• OSHA perceives that there is an imminent danger that warrants an inspection.

Generally, OSHA inspectors (or, if your state has a safety plan, the state inspector) will not notify you before their visit to your facility. You have the right to demand that the inspectors obtain an inspection warrant before allowing them to enter your premises. If you don’t demand a warrant, then you will be considered to have voluntarily consented to the inspection. You may accompany the inspector on the facility tour, but the inspector is permitted to speak to individual employees privately.

“What happens if OSHA finds violations during the inspection?”

If the inspection reveals violations, OSHA will issue a citation to your company that details the violations, notifies you of the proposed penalties, and informs you of your rights to appeal the charges. You may then decide to pay the penalties and correct the violations, enter into settlement negotiations with OSHA to reduce the penalties, or file a “Notice of Contest” indicating your intention to contest the findings before the Occupational Safety and Health Review Commission. This commission is an independent agency unrelated to OSHA or the Department of Labor.

Penalties will vary according to the seriousness of the violation and whether your company has had repeat violations. If your company knew or should have known that it was committing a serious violation, or is aware that a hazardous condition exists that it has taken no steps to remedy, this is considered a “willful violation,” which carries a minimum penalty of $5,000 and a maximum of $70,000. If the willful violation resulted in the death of an employee, a court can impose a more substantial fine on the company, as well as imprisonment for those responsible for the violations.

IMMIGRATION REFORM AND CONTROL ACT OF 1986

As discussed earlier in this chapter, Title VII forbids discrimination on the basis of national origin or citizenship. But while businesses in the United States are encouraged to hire a diverse workforce, they must limit their hiring to those who have the right to legally work in the United States. The Immigration Reform and Control Act (IRCA) sets out rules that employers must follow to ensure that they hire people eligible to work here, whether they be U.S. citizens or aliens authorized to work.

“What do I have to do to comply with the IRCA?”

Employers must complete and retain a Form I-9, Employment Eligibility Verification, for all employees hired after November 6, 1986. You can obtain copies of this form from the U.S. Bureau of Citizenship and Immigration Services (USCIS). Make sure you regularly check for the most current form, as regulations, guidelines, and specific requirements change. For each new employee you hire, you will need to take the following steps:

1. Ensure that your employees fill out the information at the top of Form I-9 on the first day of work. If they cannot complete the form themselves or need translation, you may provide them with assistance as long as the preparer or translator fills out the designated certification block on the form. The employer is responsible for making sure that this part of the form is completed in full. An I-9 is required only for workers you actually hire; you should not have all job candidates filling out this information. Since the form contains citizenship and national origin information, you could risk a discrimination lawsuit if you do not hire the applicant.

2. Review documents establishing the employee’s identity and eligibility to work. The employee must present to you original documents from the list of documents considered acceptable by the government. The employee is required to present her documentation within three business days after beginning work. If she is unable to provide the documentation, she must present a receipt for the application for the chosen documentation within the same three-day time frame and the actual document within ninety days after beginning employment.

3. Complete Section 2 of the Form I-9 (pertaining to information about the identity and eligibility documentation presented to you). The IRCA does not mandate that you make a copy of the documentation the employee has presented, and even if you keep copies, you must still complete Section 2 of the I-9. However, copies of the documents can be useful for backup purposes. If you do make copies, attach them to the I-9.

4. Retain the Form I-9 for three years after the date the employee begins work or for one year after the termination date, whichever occurs later.

5. Make the Form I-9 available for inspection by government immigration officials upon at least three days’ prior notice. For privacy reasons, do not store the I-9 form in the employee’s employment file. Maintain all forms in a central location, such as a three-ring binder, so that you will have them all handy if you are audited. Administration will be easier if you keep I-9s for active employees in alphabetical order in one location, and when employees leave the organization, you move their I-9s to a binder for terminated employees, kept in alphabetical order by month. This will make it easier for you to identify the I-9s that you can dispose of one year after termination.

The USCIS imposes financial penalties on employers that violate the provisions of the law, with strict penalties for willful violations. Engaging in a pattern or practice of hiring or continuing to employ illegal aliens, or committing fraud in connection with the immigration laws, can result in criminal penalties as well.

“Can I specify which identification and work eligibility documents an employee must present to me?”

No. You must accept the documents given to you as long as they appear to be genuine. You cannot require certain employees to produce more documentation or make government inquiries requesting further information if the documents look valid. If the documents show obvious signs of tampering or forgery, do not accept them or your organization may be charged with knowingly employing an illegal alien. If you suspect that an employee is presenting fraudulent paperwork, you should contact an attorney to discuss a plan of action.

“What is E-Verify and do I have to use it?”

E-Verify is an Internet-based system operated by USCIS that provides an automated link to the Department of Homeland Security and Social Security Administration databases to help employers determine employment eligibility of new hires and validity of their Social Security numbers. Employers may use E-Verify only after a candidate accepts a job offer and completes the Form I-9. Participation is voluntary for most employers, but mandatory for federal contractors and subcontractors with contracts over $3,000. USCIS provides E-Verify training for employers and administers the program after employers sign a Memorandum of Understanding regarding their participation in the program. A number of states also require specified employers to use E-Verify.

“Do I need to maintain a Form I-9 for independent contractors?”

No. If you use contract employees from any source, such as a temporary agency or a food service company, that third-party company is responsible for obtaining the identity and eligibility documentation and maintaining the I-9s. Similarly, if you hire an independent consultant, you need not verify her work authorization. However, you cannot knowingly use contract labor for the purpose of circumventing the laws.

“What do I do about work authorizations that expire during the employment term?”

It is the employer’s responsibility to track I-9s and to update them for reverification of employment authorization. It is critical to have some type of a tickler system to track future expiration dates. You should remind employees to renew their work authorizations at least ninety days before the expiration date.

“What should I do if I rehire a person who previously filled out an I-9?”

If you rehire the person within three years of the date of completion of the original document, you may update the I-9 instead of preparing a new one. If the employee’s work authorization documented in the original I-9 has expired, you should ask for proof of an extension and then record that information on the form. Don’t consider the date of expiration of authorization in making a hiring or employment decision, because this could be considered discriminatory.