4 - Workplace: US Employment Laws & Regulations (From Study Group) Flashcards
ADA Amendments Act (ADAAA) of 2008
- Retains the basic definition of disability contained in the ADA but expands interpretation.
- Makes it easier to meet the definition of disability.
- Includes nine rules of construction.
- Identifies several impairments that virtually always meet the definition of disability.
- Expands the ADA list of major life activities.
Adverse Actions
(Retaliation)
- Firing, demoting, or disciplining an employee or treating an employee in a discriminatory manner
- Threatening action against or criticizing the employee
- Inappropriate discussions with the employee and internal or external parties
Age Discrimination in Employment Act (ADEA)
Covers
- Employers with 20 or more employees
- Unions with 25 or more members
- Employment agencies and apprenticeship and training programs
Age Discrimination in Employment Act (ADEA)
Prohibits
- Employment discrimination against persons age 40 and over
- Mandatory retirement based on age (with few limited exceptions)
Americans with Disabilities Act (ADA)
- Prohibits discrimination against qualified individuals with disabilities.
- Applies to employers with 15 or more employees, employment agencies, labor organizations, and joint labor-management committees.
Child Labor Provisions
FLSA
Restricts the hours and conditions of employment for minors
Civil Rights Act of 1991
- Allows jury trials when a plaintiff seeks compensatory or punitive damages.
- Compensatory damages are awarded to make an injured person “whole.”
- Punitive damages (exemplary damages) are awarded when the defendant’s willful acts were malicious, violent, oppressive, fraudulent, wanton, or grossly reckless.
- Under federal law, punitive damages are not possible against a governmental unit or agency (but may be available under state law).
Consolidated Omnibus Budget Reconciliation Act (COBRA)
- Provides continuous group medical coverage after a qualifying event.
- Type of event determines the length of coverage, generally 18 or 36 months.
- Employer can charge actual cost plus a 2% administrative fee.
- Applies to employers who provide health-care benefits to 20 or more employees.
Disability
(ADA)
- Has an impairment that substantially limits one or more major life activities
- Has a record of such an impairment
- Is regarded as having such an impairment
Disparate (adverse) impact
Indirect discrimination that results when a policy that appears to be neutral has a discriminatory effect
Disparate treatment
Direct discrimination that treats protected classes differently from other applicants or employees
Dodd-Frank Wall Street Reform and Consumer Protection Act
FCRA Amendment
- Adds notification requirements if any adverse action is taken either partly or wholly because of information in a consumer report.
- Examples:
- Notice of the adverse action
- Specific credit score information
- Name of the consumer reporting agency or person that furnished the credit score
Drug-Free Workplace Act
Federal contractors with contracts of $100,000 or more and recipients of grants from federal government in any amount must:
- Develop a policy that maintains a drug-free workplace.
- Specify penalties for policy violations.
- Provide a copy of the policy to employees.
- Establish a drug-awareness program.
EEOC Complaint Process
Electronic Record Keeping
- Systems must have reasonable controls to ensure the integrity, accuracy, authenticity, and reliability of records.
- Records must be maintained in reasonable order in a safe and accessible place.
- Records must be able to be converted to paper format.
- Adequate records management practices must be in place.
Employee Polygraph Protection Act
(EPPA)
- Regulates the use of polygraph tests (lie detectors).
- Allows the use of polygraph tests when:
- The employer is the federal, state, or local government.
- Current employees are under reasonable suspicion of involvement in workplace incident that results in economic loss.
- Prospective employees will work in security-sensitive, drug manufacturing, or intelligence situations.
- Employer may not discharge an employee based solely on test results or refusal to test.
Employee Retirement Income Security Act (ERISA)
- Establishes minimum standards for retirement plans
- Plans must conform to the Internal Revenue Code’s requirements and ERISA to receive tax advantages.
- Sets up the Pension Benefit Guaranty Corporation (PBGC).
- Rules cover:
- Fiduciary duties.
- Eligibility requirements.
- Vesting requirements.
- Communication requirements.
- Reporting requirements.
Employment Practices Liability Insurance
EPLI
- Protects against the risk of heavy financial losses resulting from employment claims and lawsuits.
- Must be carefully considered and reviewed to ensure that it provides the level of protection needed.
Equal Employment Opportunity Act
Title VII Amendment
Gives the EEOC authority to “back up” its administrative findings and conduct its own enforcement litigation
Equal Opportunity
Laws require employment decisions to be job- and business-related and not made on the basis of:
- Race.
- Sex (including pregnancy).
- Ethnicity.
- National origin.
- Citizenship.
- Religion
- Age
- Color.
- Military/veteran status.
- Genetic information.
- FMLA entitlement.
- Disability status.
- Other factors.
Equal Pay Act (EPA)
Prohibits unequal pay for equal or “substantially equal” work performed by men and women (with limited exceptions).
- Skills
- Effort
- Responsibility
- Working conditions
Essential Functions
(ADA)
Primary job duties that a qualified individual must be able to perform, with or without accommodation
Exempt
- Excluded from minimum wage and overtime pay requirements of the law.
- Must work in a bona fide manner and meet requirements for:
- Primary (exempt) duties.
- Salary compensation (as a uniform amount).
- Minimum salary.
Fair and Accurate Credit Transactions Act
(FACT Act)
FCRA Amendment
- Eliminates consent and disclosure requirements for certain third-party investigations (e.g., suspected misconduct, a violation of laws or regulations).
- Includes directives aimed at uncovering and preventing incidents of identity theft or unauthorized use of the information.
- Provides some relief to employers using third parties to conduct workplace investigations.
Fair Credit Reporting Act
(FCRA)
- Protects privacy of background information and ensures that information supplied is accurate.
- Applicant/employee must provide written authorization before a consumer report is ordered (with limited exceptions).
- Employer must provide:
- Written notice that a report may be used and time for a response to the report.
- Notice if adverse action procedures are taken.
- Certification to credit bureaus of FCRA compliance.
Fair Labor Standards Act
(FLSA)
Establishes minimum wage, overtime pay, youth employment, and record-keeping standards affecting full- and part-time workers in the private sector and in federal, state, and local governments.
Applies to:
- Employers with at least $500,000 in annual dollar volume of business (with limited exceptions).
- Organizations with employees who engage in interstate commerce or the production of goods for interstate commerce.
Fair Workplace Recommendations
- Include sexual orientation in nondiscrimination policies.
- Provide training.
- Prohibit and prevent harassment of lesbian, gay, bisexual, transgender employees.
- Recognize organizations representing interests of lesbian, gay, bisexual, transgender employees.
- Refer to “sexual orientation” rather than “sexual preference.”
Family and Medical Leave Act (FMLA)
- Covers private employers that have employed 50 or more employees for 20 or more workweeks in current or preceding year.
- Employee must have worked at least 12 months (total within last seven years) for employer, have worked 1,250 hours in past year, and work at site within 75 miles of which 50 or more employees work.
- Provides up to 12 workweeks of unpaid, job-protected leave for incapacity due to pregnancy; prenatal medical care; childbirth; child care following birth or placement for adoption or foster care; serious health condition of a child, spouse, parent, or the employee; for obligations arising from military service.
FLSA Overtime Pay Provisions
- Sets rate of overtime pay (1.5 times regular pay after 40 hours worked).
- Sets workweek as any fixed, recurring period of 168 consecutive hours (7 days ´ 24 hours).
- Requires overtime on time worked, not time compensated.
- Requires overtime to be paid in cash, except for public-sector employees. (Presently, compensatory time is not allowed for private-sector nonexempt employees.)
FMLA Expansion
According to National Defense Authorization Acts provisions:
- Qualified Exigency Leave
- Military Caregiver Leave
FMLA Military Caregiver Leave
- FMLA leave for an eligible employee who is spouse, son, daughter, or parent of or next of kin to covered service member with serious injury or illness.
- Up to 26 workweeks during 12-month period
FMLA Qualified Exigency Leave
- FMLA leave due to spouse, son, daughter, or parent being on or called to covered active duty.
- Up to 12 workweeks
FMLA Regulations
Department of Labor regulations pertaining to:
- Absence of a legal or biological parent-child relationship.
- “Spouse” definition.
- Intermittent leave.
- Medical certification.
- Fitness for duty.
- Health benefits continuation during
- FMLA leave and trigger for COBRA.
- Reinstatement rights.
- Modified-duty programs.
- Cost containment.
- “Serious health condition” definition.
