Functional Area 15: U.S. Employment Law & Regulations

prima facie case

(i.e., the minimum amount of evidence an employee must demonstrate in order to state a claim as a matter of law) if she or he received a lower wage than members of the opposite sex for performing work that requires substantially the same skills, effort, and responsibilities under similar working conditions, all performed at the same location.

bill

A proposal presented to a legislative body for possible enactment as a statute

regulation

A rule or order issued by an administrative agency; usually has the force of law. Interpretive bulletins distributed by administrative agencies are helpful in deciphering regulatory developments

veto

Action of rejecting a bill or statute. For example, the President of the United States may veto a statute that has been passed by Congress

exceptions to equal pay act

An employer can defend its pay disparity by showing that the pay disparity was based on: A seniority system. A merit system. A difference in the quality or quantity of work Geographic work differentials. Any factor other than sex

preparatory/ concluding activities (Portal Act)

Certain types of preparatory and concluding activities must be compensated, and others need not be. The general test is whether the activity is performed solely for the employer's benefit and is an integral and indispensable part of the employee's job activities

examples of key OSHA standards

Emergency Exit or Evacuation Procedures Provides guidelines for preparing an emergency action plan and includes specifications regarding exits and maintenance of emergency systems; also known as Means of Egress standard. Occupational Noise Exposure Requires employers to provide for effective engineering or administrative controls to reduce unsafe noise levels in the workplace; also known as Hearing Conservation standard. Machine Guarding Provides general requirements for all machinery to protect operator and other employees. Hazard Communication Requires use of labeling, safety data sheets, training, orientation for new and transferred employees, and written hazard communication programs to inform employees of hazardous chemicals in the workplace; also known as Employee Right-to-Know Law.

ERISA Regulatory Enforcement and Jurisdiction

Enforcement and jurisdiction for ERISA is split across the DOL, the IRS, and the Pension Benefit Guaranty Corporation. The DOL has jurisdiction over reporting, disclosure, and fiduciary responsibility. The IRS has jurisdiction over tax-related matters involving benefit plans (funding, eligibility, etc.)

Health Insurance Portability and Accountability Act (HIPAA) of 1996

HIPAA clarifies that all related qualified beneficiaries eligible for COBRA because of the same 18-month qualifying event are entitled to purchase the additional 11 months of continuation coverage—for a total of 29 months—if any one of the qualified beneficiaries is disabled at the time of termination or at any time during the first 60 days of COBRA coverage.

compensatory "comp" time (pertains to OT)

In general, overtime must be paid in the form of wages. Presently, compensatory time is not allowed for nonexempt employees in the private sector, which includes those organizations not controlled by the government, such as privately owned businesses and not-for-profit organizations. However, public-sector employers, generally comprising entities of the federal, state, and local governments, may grant compensatory time off ("comp" time) instead of wage payments in certain circumstances.

fair workplace recommendations for employers

Include sexual orientation in nondiscrimination policies. Provide training. Prohibit and prevent harassment of lesbian, gay, bisexual, and transgender employees. Recognize organizations representing the interests of lesbian, gay, bisexual, and transgender employees. Refer to "sexual orientation" rather than "sexual preference.

Title I ADA

Medical examinations and inquiries. Employers may not ask job applicants about the existence, nature, or severity of a disability. Applicants may be asked about their ability to perform essential job functions. Drug and alcohol abuse. Employees and applicants currently engaging in the illegal use of drugs are not covered by the ADA when an employer acts on the basis of such use. Tests for illegal drugs are not subject to the ADA's restrictions on medical examinations. Employers may hold illegal drug users and alcoholics to the same performance standards as other employees

serious health condition

The 1993 FMLA regulations defined a serious health condition as one requiring inpatient hospital, hospice, or residential care or continuing treatment by a health-care provider (with multiple definitions). DOL regulations issued in 2009 clarified one of the definitions of a serious health condition, which involves employee incapacity for more than three consecutive, full calendar days plus two visits to a health-care provider or one visit to a health-care provider plus a regimen of continuing treatment. The first health-care provider visit must occur within seven days of the first day of incapacity. Where applicable, the two visits must occur within 30 days of the beginning of the period of incapacity, absent extenuating circumstances. In addition, for chronic serious health conditions, the employee must visit a health-care provider at least twice per year.

blackout notice (SOX)

The 30-day blackout notice must be in writing and must be stated in a way that the average plan participant can understand. Electronic notification is permitted if the notice is "reasonably accessible" to participants. The notice must include: Reasons for the blackout period. Identification of the investments and participant rights that are affected. Expected beginning date and length of the blackout period.

EEOC complaint process

The EEOC has field offices nationwide. Charging parties who believe that they have been discriminated against can file a charge in any field office. As a general rule, a claim under Title VII of the 1964 Civil Rights Act must be filed within 180 days after the commission of the alleged discriminatory practice.

meals/ breaks (Portal Act)

The act does not require an employer to provide rest or meal breaks to non-minors. State law and collective bargaining agreements may vary greatly, however. Under the act, rest periods of five to 20 minutes are considered hours worked.

equal employment opportunity (eeo concept)

The basic premise of antidiscrimination legislation over the past five decades is that employers should not make employment decisions on the basis of an applicant's or employee's race, sex (including pregnancy), ethnicity, national origin, citizenship, religion, age, color, military/veteran status, genetic information, Family and Medical Leave entitlement, disability status, and other factors. Rather, employment decisions—including hiring, work assignments, compensation, promotions, and terminations—must be job-related and consistent with business necessity

COBRA coverage

The maximum length of time COBRA coverage can be continued (usually 18 or 36 months, sometimes longer) is determined by the type of qualifying event examples of max coverage: Termination of employment for gross misconduct = 0 Termination of employment for any reason other than gross misconduct = 18 max months Divorce or death of the employed spouse= 36 max months COBRA coverage generally ends when the employee or dependent ceases paying premiums, becomes eligible for medical insurance from a new employer, gains Medicare coverage after electing COBRA coverage, or when the employer terminates its health-care plan

amendment

The modification of the Constitution or a law. Amendment modification may alter the actual text of the Constitution or law. But even if the text is not changed, an amendment changes its effect

qualified exigency leave

This benefit provides up to 12 workweeks of FMLA leave due to a spouse, son, daughter, or parent being on covered active duty or having been notified of an impending call or order to covered active duty in the armed forces. For members of a regular component of the armed forces, "covered active duty" means duty during deployment with the armed forces to a foreign country

military caregiver leave

This benefit provides up to 26 workweeks of unpaid FMLA leave during a single 12-month period for an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered service member with a serious injury or illness.

Civil Rights Act 1964

This landmark piece of U.S. legislation was the nation's first comprehensive federal law making it unlawful to discriminate in employment on the basis of race, color, religion, sex, or national origin.

Segregation and classification of employees (Title VII provision)

Title VII is violated if employees who belong to a protected class are segregated by physically isolating them from other employees or from customer contact. In addition, employers may not assign employees according to race or colo

overtime pay

Under FSLA, all non exempt workers must be paid 1.5 times their regular rate of pay for hours worked in excess of 40 in any workweek. The regular rate of pay includes basic pay plus nondiscretionary bonuses, shift premiums, production bonuses, and commissions.

common law

a concept the United States inherited from its British roots. Common law is based on court decisions, rather than statutory law, and is recognized on the federal level and in whole or in part in nearly all states. At-will employment is an example of common law. Common law is also the source of the concept of precedent, which states that once a court of sufficient authority decides what the law is in a particular circumstance, subsequent courts dealing with similar cases must apply that principle of law

The Dodd-Frank Wall Street Reform and Consumer Protection Act

amended the FCRA in 2011

Older Worker Benefits Protection Act (OWBPA) 1990

further amended the ADEA, adding detailed provisions on employment benefits and waivers amended the ADEA to prohibit discrimination in two areas: Employee benefits. The act provides guidance on the ADEA requirement that benefits offered to older workers must be equal to the benefits offered to younger workers. Waivers of claims. The act provides standards that an employee's waiver of the right to sue for age discrimination must meet in order to be upheld by a court

Labor Management Reporting and Disclosure Act (LMRDA) of 1959

further amended the NLRA and imposed regulations on internal union affairs and the relationship between union officials and union members.

vicarious liability

legal doctrine under which a party can be held liable for the wrongful actions of another party. Because of this doctrine, employers are legally responsible for the discriminatory acts of their supervisors and managers and may be for their nonsupervisory employees as well. based on two principles: (1) Employers have the responsibility to take reasonable care to prevent and correct or end harassment (sexual or otherwise) through appropriate intervention, including, if necessary, discipline, and (2) employees have the responsibility to take advantage of preventive and corrective opportunities

Phillips vs. Martin Marietta Corp.

one of the first cases to apply the sex discrimination provisions of Title VII of the Civil Rights Act of 1964 to employment decisions. An employer may not, in the absence of business necessity, refuse to hire women with preschool-aged children while hiring men with such children

Age Discrimination in Employment Act (ADEA)

passed to prohibit discrimination in the workplace on the basis of age. The act prohibits discrimination in every aspect of employment against employees and applicants age 40 and over, with a few limited exceptions to recognize that advanced age may, in some circumstances, affect an individual's ability to perform certain jobs effectively.

regulations

reflect how laws will be implemented and often have the force of law. Regulations are proposed, adopted, and enforced by administrative agencies to whom government units have delegated specific rule-making authority. Regulations may have just as profound an effect on organizations as laws

blackout period (SOX)

requires administrators of 401(k) and other defined contribution plans to provide notice to affected participants and beneficiaries at least 30 days in advance of a blackout period. The act added a civil penalty for a plan administrator's failure or refusal to provide timely notice of a blackout period. The blackout period is a period of more than three consecutive business days during which participants or beneficiaries cannot direct the investment of or diversify assets credited to their accounts or obtain loans or distributions, other than certain exceptions specified in ERISA Section 101(i)

The Worker Adjustment and Retraining Notification Act (WARN Act) of 1988

requires some employers to give a minimum of 60 calendar days of advance written notice if a plant is to close or if mass layoffs will occur. This act allows displaced workers adequate time to search for a new job and allows government entities to determine whether any assistance may be available for affected workers; therefore, it potentially reduces the impact of any mass layoff or plant closing

federal rule-making process

rule is proposed public comment is invited final rule is issued

Wage and Hour Law; also called the Wagner-Connery Wages and Hours Act

same as FLSA

Griggs vs. Duke Power 1971

sets the standard for determining whether discrimination based on disparate impact exists. When an employer establishes an employment practice (such as an education requirement or a test score), the employer must be able to justify its actions as being job-related and consistent with a business necessity. Practices, procedures, or tests that appear neutral on their face, and even neutral in their intent, and that result in a discriminatory effect on a protected class without the above justification are illegal

Labor-Management Relations Act (LMRA) of 1947

significantly amended the (LMRA) of 1947 significantly amended the NLRA and imposed several restrictions and requirements on unions.

EEOC guidelines of sexual harassment

state that ". . . unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when: Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individuals.

identification of a reasonable accommodation

step 1: individual asks for accommodation step 2: identify barriers to performance of essential job functions step 3: identify possible accommodations that might be helpful overcoming the barriers step 4: assess reasonableness of accommodations step 5: choose appropriate accommodation for individual

graded vesting

under which the benefits become incrementally nonforfeitable as the participant completes each of a specified number of years of service.

OSHA

was created within the federal DOL to administer and enforce the act. OSHA's mission is to help employers and employees reduce on-the-job injuries, illnesses, and deaths. Several objectives for OHSA are included in the act. Key ones are to: Encourage employers and employees to reduce safety and health hazards. Encourage employers and employees to perfect safety and health programs. Authorize the secretary of labor to establish mandatory occupational health and safety standards. Create an Occupational Safety and Health Review Commission (OSHRC) to hear appeals under the act.

The National Labor Relations Act (NLRA) of 1935/ Wagner Act or Wagner-Connery Act

was passed with the purpose of protecting and encouraging the growth of the union movement. The act established workers' rights to organize and bargain collectively with employers. The NLRA also established a new independent agency—the National Labor Relations Board (NLRB). As originally passed, the NLRA provided strong support for the rights of employees to join a union. For that reason, in most people's minds, the NLRA is associated with union activity. However, it would be a mistake to think that the provisions of the NLRA apply only to union members. The rights granted by the law apply to all nonsupervisory workers—whether or not they are members of unions and whether or not specific organizing activity has occurred

The National Defense Authorization Act (NDAA) for Fiscal Year 2008

DOL regulations issued in 2009 clarified one of the definitions of a serious health condition, which involves employee incapacity for more than three consecutive, full calendar days plus two visits to a health-care provider or one visit to a health-care provider plus a regimen of continuing treatment. The first health-care provider visit must occur within seven days of the first day of incapacity. Where applicable, the two visits must occur within 30 days of the beginning of the period of incapacity, absent extenuating circumstances. In addition, for chronic serious health conditions, the employee must visit a health-care provider at least twice per year.

attorney-client privilege

A discussion between a client and an attorney related to securing legal advice is considered "privileged" or confidential and is not subject to the discovery process—within certain limits

waiting time (Portal Act)

An employer does not have to pay an employee when the employee arrives at work early and is waiting for the workday to begin. However, the employee cannot be doing even casual work without pay during this waiting time

Pregnancy Discrimination Act (PDA) 1978

amended Title VII to prohibit discrimination on the basis of pregnancy, childbirth, or related medical conditions; it requires employers to treat pregnancy the same as any other temporary disability. Employers must provide access to medical benefits and sick leave on the same basis as such benefits are provided to other employees or for other conditions

steps for conducting an investigation

1. Address confidentiality. 2. Select investigator. An investigator should be chosen who is perceived as fair and unbiased 3. Create plan. All possible sources of evidence must be identified and plans laid for securing this evidence 4. Conduct interviews. Interviewers should maintain impartiality and objectivity but must listen carefully to detect inconsistencies, evasions, implausible statements, and contradictions 5. Create report, if appropriate

3 IRS considerations for independent contractors

1. Behavioral control Facts that show whether the organization has a right to direct and control how the worker does the task for which the worker is hired, include the type and degree 2. Financial control Facts that show whether the organization has a right to control the business aspects of the worker's job 3. Relationship of the parties Facts that show the parties' type of relationship

additional requirements of ERISA

1. Eligibility requirements. ERISA establishes minimum eligibility requirements for retirement plan benefits. In general, the minimum requirements are attainment of age 21 and completion of 12 months of service, with only a few exceptions. 2. Vesting requirements. ERISA establishes minimum vesting requirements for retirement plans. Vesting is the process by which a retirement benefit becomes nonforfeitable, that is, when the employee is permanently entitled to a portion or all of his or her benefit. Although an employee is always 100% vested in his or her own contributions, employer matching and other employer contributions often vest over time. 3. Communication requirements. ERISA requires retirement and benefit plan administrators to prepare and distribute summary plan descriptions (SPDs) to participants 4. Reporting requirements. In general, an annual report (Form 5500) must be filed with the IRS and made available for participants to inspect

travel time (Porter Act)

1. commuting time is not paid work time, even when the employee is using an organization vehicle. However, nonexempt employees who drive vehicles that contain essential tools or equipment of the employer from their homes to work sites may be working while traveling and should receive travel pay. Travel from home to a customer's site in response to an emergency call after the regular workday is work time 2. Workday travel. Employees who travel in the course of a workday, such as from one work location to another, are entitled to compensation for their travel time. Travel to work-related meetings is compensable 3. Out-of-town travel during the course of a day. Travel out of town may also comprise work. When an employee who normally works at one location is sent out of town on a single-day trip, the time spent traveling is work time. 4. Overnight travel. An employee who travels away from home overnight is not working when he or she is a passenger on an airplane, train, boat, bus, or automobile outside of regular work hours. 5. Training time is generally included in the calculation of hours worked. However, the time spent at a conference, meeting, or seminar does not have to be compensated if four conditions are met: Attendance is voluntary. Attendance is outside of the employee's regular work hours. The event is not directly job-related. The employee performs no productive work during this period

6 broad categories of US employment law

1.compensation Employee Retirement Income Security Act of 1974 (ERISA); Fair Labor Standards Act of 1938 (FLSA; Wage-Hour Bill; Wagner-Connery Wages and Hours Act) and amendments; Equal Pay Act of 1963 (amending FLSA) 2.employment relations Labor Management Relations Act of 1947 (LMRA; Taft-Hartley Act); National Labor Relations Act of 1935 (NLRA; Wagner Act; Wagner-Connery Labor Relations Act) 3.equal employment opportunity Age Discrimination in Employment Act of 1967 (ADEA) and amendments; Americans with Disabilities Act of 1990 (ADA) and ADA Amendments Act of 2008; Civil Rights Acts; Equal Employment Opportunity Act of 1972 (amending Civil Rights Act); Uniform Guidelines on Employee Selection Procedures (1978) 4.job, safety & health Drug-Free Workplace Act of 1988; Guidelines on Sexual Harassment; Occupational Safety and Health Act of 1970 5. leave & benefits Family and Medical Leave Act of 1993 (FMLA; expanded 2008, 2010); Patient Protection and Affordable Care Act (PPACA; ACA; "Obamacare") 6.misc. protection laws Employee Polygraph Protection Act of 1988; Genetic Information Nondiscrimination Act of 2008 (GINA)

ADEA exceptions

Age discrimination is permissible if age is a bona fide occupational qualification for reasons that are reasonably necessary to the normal operation of the enterprise. Other exceptions to ADEA's nondiscrimination requirements may occur under the following circumstances: The employer is adhering to a genuine seniority or benefit plan. The employer is disciplining or firing a person for reasonable factors other than age. The employee is a top executive or policy maker.

fiduciary duties (ERISA)

An ERISA plan must be operated for the exclusive benefit of the participants and their beneficiaries. The plan fiduciaries must follow the prudent person rule with respect to the handling, investment, and management of the plan's assets. According to this rule, the fiduciary cannot take more risks than a prudent expert investor would under similar circumstances.

penalties (FLSA)

An employer who violates the FLSA's requirements to pay overtime is liable to an employee in the amount of the unpaid overtime compensation as well as an additional, equal amount as liquidated damages. The statute of limitations under the FLSA is generally two years, but the time period can be extended to three years if there has been a willful violation by the employer. In addition to an award of unpaid wages, the employee is also entitled to recover reasonable attorneys' fees and costs incurred in bringing the action. An employee may not bring suit if he or she has been paid back wages under the supervision of Wage and Hour Division of the DOL or if the secretary of labor has already filed suit to recover the wages. Criminal penalties of not more than $10,000 and six months' imprisonment may also be imposed for certain willful violations. Under the FLSA, a violation is willful generally if the employer knew or showed reckless disregard as to whether its conduct violated the law

investigation of claim

Any employee covered by the FLSA may initiate a complaint. An investigator may visit the work site of the claimed infraction and review the employer's pay practices and status determinations. A conference between the investigator and representatives of the employer may be held to discuss a settlement if a violation is found. If none is agreed to, the employer can be taken to court by either the secretary of labor or the employees who are owed unpaid back wages. Unlike claims of unlawful discrimination, an employee may file a FLSA-related lawsuit directly without first exhausting administrative remedies from the DOL

marijuana laws (relates to DFWA)

But as state marijuana laws continue to evolve, firing employees for marijuana use is becoming increasingly complicated, especially for employers without clear workplace drug policies and especially when marijuana use takes place outside working hours or for medical reasons and has no impact on job performance. 14 states have decriminalized the use of marijuana, and eight states plus the District of Columbia have legalized its use in certain quantities. These numbers are even greater when considering laws enacted at the local level. Marijuana in the workplace is still relatively new legal territory, and the implications of state marijuana laws are both complex and evolving. Complicating the legal landscape is the fact that state marijuana laws vary greatly in their criteria and implementation

ways HR should secure appropriate legal advice and expertise and adopt preventive legal strategies

Consult with the organization's attorney to prepare for complaints. With the attorney, HR can review likely scenarios and develop appropriate processes that ensure a prompt, consistent, and legally safe response. HR must act quickly once the possibility of litigation arises. Deliver training related to litigation responsibilities. Improper communication and document handling can have severe repercussions for the organization.

checking for adverse impact

Example: Assume that an organization interviewed the following people for factory assembly positions: Group: males Number Interviewed: 40 Number Hired: 20 Group: females Number Interviewed:30 Number Hired:6 To determine adverse impact: 1. Identify the selection rate (the percentage hired) for each group. • The male selection rate is 50% (20 ÷ 40 = 50%). • The female selection rate is 20% (6 ÷ 30 = 20%). 2. Identify the group with the highest selection rate (males at 50%). This is the majority group. 3. Divide the lowest selection rate (minority group) by the highest selection rate (majority group). 20 ÷ 50 = 40% Adverse impact is indicated if the selection rate of the minority group (in this example, females) is less than 80%, or four-fifths, of the selection rate of the majority group (in this example, males). In this case, the female selection rate must be at least 40% to avoid a presumption of adverse impact (40/50 = 80%). Adverse impact is indicated, therefore, since the selection rate of females (at 20%) is less than 40%

FLSA exemptions

Generally, in order for an employee to be exempt, three requirements must be met: (1) minimum salary, (2) paid on a salary basis (without improper deductions), and (3) primary duties

HR involvement in litigation

HR professionals often work directly with the employer's attorney—attending depositions and gathering information necessary to respond to the plaintiff's allegations and requests from the court or investigating agency, protecting evidence, attending meetings with agencies and plaintiffs, and testifying in court. They may also work with attorneys to craft preemptive settlements or implement ordered remedies.

definition of "disability" in 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. Some examples of "major life activities" covered by the ADA include (but are not limited to) walking, seeing, hearing, breathing, thinking, communicating, operation of major bodily functions, transferring/mobility, toileting/personal hygiene, bathing and dressing, and caring for oneself. The ADA also prohibits discrimination against a qualified individual because of a known or perceived disability of an individual with whom the qualified individual has a relationship or association.

on-call/ stand-by time (Portal Act)

If the employer restricts an employee's activities and does not allow any personal business, then the hours are included as time worked, including overtime. Employers may not be required to pay wages or overtime when an employee is off the premises and on call (asked to stay by the phone or computer, carry a mobile device, or respond to a beeper) as long as the employee generally is not otherwise restricted

Recruiting, hiring, and advancement (Title VII provision)

Job requirements must be uniformly and consistently applied to persons of all races and colors. Even if a job requirement is applied consistently, if it is not important for job performance or business needs, the requirement may be found unlawful if it excludes persons of a certain racial group or color significantly more than others. Examples of potentially unlawful practices include: Soliciting applications only from sources in which all or most potential workers are of the same race or color. Requiring applicants to have a certain educational background that is not important for job performance or business needs

equal pay act definitions

Skills Experience, training, education, and ability required to perform a job Effort Physical or mental exertion needed for performance of a job Responsibility Extent to which an employer depends upon the employee to perform the job as expected, with emphasis on accountability Working conditions Physical surroundings and hazards of a job, including dimensions such as inside versus outside work, excessive heat or cold, and fumes and other factors relating to poor ventilation

direct threat standard (ADA)

The ADA permits employers to establish qualification standards that exclude individuals who pose a direct threat (a significant risk of substantial harm) to the health or safety of the individual himself or herself or others if that risk cannot be eliminated or reduced below the level of a "direct threat" by reasonable accommodation. However, an employer may not simply assume that a threat exists; the employer must establish through objective, medically supportable methods that there is a significant risk that substantial harm could occur in the workplace

FMLA compliance

The DOL administers the FMLA. The DOL has released numerous documents regarding employer and employee rights and procedural requirements under the FMLA. Some of the key DOL regulations and interpretation documents pertain to: Guidance on how the FMLA applies when there is no legal or biological parent-child relationship. Clarification regarding how "spouse" is defined. Clarification of intermittent leave (when leave is taken a little at a time, as needed). Medical certification requirements and under what circumstances an employer is permitted to contact an employee's health-care provider

workplace harassment

The EEOC tells us that harassment becomes unlawful in the following situations: When enduring offensive conduct becomes a condition of continued employment When the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive When an individual is harassed in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit Offensive conduct may include (but is not limited to) offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance. The EEOC notes that petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. In other words, one teasing comment, a single joke, or an isolated derogatory phrase typically does not constitute harassment

required breaks for non exempt employees

The FLSA also stipulates that employers must be sure that nonexempt employees are fully relieved of their duties during lunch or other unpaid breaks and that lunch and other breaks are of the length of time required under federal and state law. For example, nonexempt employees who answer business e-mails while eating lunch at their desks may be owed compensation not only for the time that is worked but also for the entire break period—depending on the amount of work that is performed during that break.

minimum wage

The FLSA requires employers to pay covered nonexempt employees at least the federal minimum wage for all hours worked up to 40 in a workweek. Many states also have minimum wage laws. Some state laws provide greater employee protections; employers must comply with both. There are some exceptions to the minimum wage, including but not limited to: Employees younger than 20 years old, during their first 90 consecutive calendar days of employment. Tipped employees. Full-time students who are employed in retail or service establishments, agriculture, or institutions of higher education. Student learners who are students at an accredited school, college, or university, at least 16 years of age, and employed on a part-time basis pursuant to a bona fide vocational training program. Workers whose earning or productive capacity is impaired by physical or mental disability

time worked as it applied to OT

The FLSA requires that overtime be paid on time worked, not time compensated. Therefore, no overtime need be paid on sick pay, holiday pay, vacation pay, jury duty pay, or similar compensation for unworked days. Some organizations, however, voluntarily treat such time as time worked for the purpose of determining overtime pay

child labor provisions

The FLSA restricts the hours and conditions of employment for minors and protects children under 18 years of age from "oppressive" employment conditions. Employers should obtain an employment and/or age certificate approved by the Wage and Hour Division of the DOL (the enforcing agency); this certificate is usually issued by the appropriate state agency or the minor's school. Child labor provisions under FLSA are designed to protect the educational opportunities of youth and prohibit their employment in jobs that are detrimental to their health or physical and mental safety. The FLSA restricts the hours that minors can work and lists hazardous occupations too dangerous for young workers to perform

Lechmere, Inc. v. NLRB (1992)

The National Labor Relations Act guarantees employees "the right to self-organization, to form, join, or assist labor organizations" and makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees" as they exercise their rights. Lechmere, Inc., owned and operated a large retail store located in a shopping plaza. Lechmere was also part owner of the plaza's parking lot. Nonemployee union organizers campaigned to organize the store employees by entering the company's parking lot and placing handbills on car windshields. Lechmere prohibited solicitation and literature distribution on its property. The union organizers persisted in their leafleting campaign despite continued objections from Lechmere. The union also filed an unfair labor practice charge with the National Labor Relations Board, alleging that Lechmere had violated the NLRA by barring the organizers from its property the U.S. Supreme Court ruled that Lechmere did not commit an unfair labor practice by barring nonemployee union organizers from its property. The court cited another related ruling and noted that the NLRA confers rights only on employees, not on unions or their nonemployee organizers

I-9 requirements of employer

The burden of verifying that a new employee is eligible to work in the U.S. falls on the employer. Generally, on the first day of employment, the new hire must fill out Section One of Form I-9, Eligibility Verification Form, which is kept in the employer's files. The employer must complete Section Two no later than the third day the employee is at work. Form I-9 verifies two facts about the employee: identity and right to work in the U.S. While not required, USCIS recommends that the form be kept separate from other employee records. The employee selects which document(s) he or she wishes to present as part of the I-9 verification process; the employer may not specify which documents must be presented. Employers are prohibited from accepting expired documents.

employee vs. independent contractor

The distinction between employees (who receive Form W-2 for tax reporting purposes) and independent contractors (who receive Form 1099) is not philosophical or always apparent. Titles or labels affixed to particular workers often are misleading and should not be relied upon to determine a worker's classification. The following are some critical tests for an independent contractor: Having the ability to set own hours and determine sequence of work Working by the project rather than having a continuous relationship with the employer Being paid by the job (rather than by the hour or pay period) Having the opportunity for profit and loss Furnishing own tools and training Being self-employed and holding oneself out as such

general duty clause (OSH Act)

The overarching employee right, each employee has the right to "a place of employment which [is] free from recognized hazards that are causing or are likely to cause death or serious physical harm

Recommendations for Effective Harassment Policy/Prevention Program

The program should: Be in writing. Define what constitutes harassment and declare that it will not be tolerated. Establish a complaint procedure that encourages employees to come forward. Involve training and education programs to focus on the specific culture and needs of a particular workplace. Provide workplace civility and bystander intervention training. Include a prompt and thorough investigation of every complaint and ensure that employees have confidence in the process. Provide for an investigation that results in corrective action if it is determined that unlawful harassment has occurred. Use a variety of methods to communicate the policy to management and employee A written harassment policy should include concrete examples of inappropriate behaviors. A few such examples might be: Derogatory remarks about a person's membership in a protected class. Visual messages (e.g., posting of cartoons) that are demeaning to a protected class. Jokes that stereotype or make fun of a protected class. Nicknames for protected classes

public comment period

The time allowed for the public to express its views and concerns regarding an action of an administrative agency

Compensation (Title VII provision)

Title VII prohibits discrimination in compensation practices. Best employer defenses include basing compensation practices on seniority, merit, performance, or systems that measure the quality and/or quantity of work

Other terms, conditions, and privileges of employment (Title VII provision)

Title VII prohibits discrimination in several other terms, conditions, and privileges of employment. Thus, discrimination on the basis of a protected class may not be the basis for differences in benefits, work assignments, performance evaluations, training, discipline or discharge, or any other area of employment

Harassment/hostile work environment. (Title VII provision)

Title VII prohibits sexual harassment and harassment based on the other protected categories. In order to avoid unlawful harassment and protect against legal liability, employers should, among other things, develop a policy prohibiting sexual and other unlawful workplace harassment

HR conducting an investigation

Whenever a complaint or employment issue can become a matter for litigation—including charges of discriminatory employment practices and wrongful termination—HR should be prepared to support a timely investigation into the matter. If the investigation uncovers any unlawful behavior by the employer's representatives, that behavior must be stopped immediately. Throughout the investigation process, HR must take steps to ensure that there is no retaliation against employee witnesses or complainants by the employer or other employees. HR should also remain sensitive to the volatile and emotional nature of disputes and take reasonable steps to secure the safety of all employees.

when state law differs from FLSA

While the FLSA defines a great deal about the employer-employee relationship, there are many aspects regarding employee compensation and benefits that are either not covered by the FLSA or that are also governed by state law. A general rule is: Whenever state and federal laws or regulations differ, follow that which most benefits the employee. Thus, if the state minimum wage is $7.50 per hour and the federal minimum wage is $7.25, employers in that state must pay employees at least $7.50 per hour.

Title VII exceptions

Work-related requirements. An employer may be able to defend a practice that has a disparate impact on a class of people but is job-related and required by business necessity. Bona fide occupational qualification. If religion, sex, or national origin is a bona fide occupational qualification (BFOQ) reasonably necessary to carrying out a particular job function in the normal operations of the organization, the factors may be used in employment practices. Race can never be a BFOQ. Bona fide seniority systems. Bona fide seniority systems that were not designed to discriminate are lawful under Title VII. Affirmative action plans.

essentials of organizational compliance

Workplace policies, procedures, and training programs. Workplace posters. New-employee orientation to explain and clarify policies. Workers' compensation insurance as required by state law. Proper withholding of taxes from employee pay. Paychecks delivered in accordance with the law. Compliance training that educates employees and managers how to understand and comply with the law. An organizational code of conduct that reflects the organization's values and complies with applicable laws. Communication of the code of conduct throughout the organization. An organizational compliance hotline for employees and other individuals (whistleblowers) to report discriminatory employment practices. Provisions to protect employees who report discriminatory employment practices or participate in an investigation of a discriminatory employment practice

agency guidelines

a directive by the chief executive of a governmental unit (e.g., the president of the United States) telling that governmental unit how it will act or interact with members of its community. While executive orders direct only the governmental unit, they have a direct impact on any individual or entity interacting with the governmental unit. For example, U.S. presidents may issue executive orders to create committees or organizations (e.g., the Peace Corps). Typically, presidents use executive orders to direct and manage how the federal government operates

executive order

a directive by the chief executive of a governmental unit (e.g., the president of the United States) telling that governmental unit how it will act or interact with members of its community. While executive orders direct only the governmental unit, they have a direct impact on any individual or entity interacting with the governmental unit. For example, U.S. presidents may issue executive orders to create committees or organizations (e.g., the Peace Corps). Typically, presidents use executive orders to direct and manage how the federal government operates

NLRB v. Weingarten (1975)

a landmark labor relations case. The case dealt with the right of a unionized employee to have another person present during certain investigatory interviews—the so-called Weingarten rights the U.S. Supreme Court held that unionized employees had the right to have a union representative present during such investigatory interviews. When a bargaining unit employee requests the presence of a union representative, management must stop questioning until the representative arrives and give the employee the option of continuing without a representative or foregoing the interview and having disciplinary decisions made on the basis of other information, without employee input.

employment practices liability insurance (EPLI)

a type of liability insurance covering an organization against claims by employees, former employees, and employment candidates alleging that their legal rights in the employment relationship have been violated. EPLI is typically structured as gap insurance for the company. It covers such things as discrimination, breach of contract, and wrongful discharge suits, which usually are not covered by general business liability insurance The cost of EPLI coverage depends on the type of business, the number of employees, and other risk factors (such as whether the organization has past employment practices claims and lawsuits). EPLI policies typically reimburse the costs of defending a lawsuit in court and for judgments and settlements. The policy covers legal costs regardless of the outcome. Policies typically do not pay for punitive damages or civil or criminal fines

record-keeping requirements (OSH)

all organizations with more than ten employees, except for low-risk businesses, must report all employee occupational injury and illness data.

basic leave entitlement provisions (FMLA)

allows employees to take up to 12 workweeks of unpaid, job-protected leave during a designated 12-month period in the following cases: For incapacity due to pregnancy, prenatal medical care, or childbirth To care for the employee's child after birth or placement for adoption or foster care To care for the employee's immediate family member (e.g., spouse, child, or parent) who has a serious health condition For a serious health condition that makes the employee unable to perform his or her job

Equal Employment Opportunity Act 1972

amended Title VII and gave the EEOC authority to "back up" its administrative findings and conduct its own enforcement litigation. In addition to granting the EEOC litigation authority, the act: Expanded Title VII coverage to include educational institutions, state and local governments, federal executive agencies, and defined units of the other branches. Reduced the number of employees needed for a private employer to be covered by the act (from 25 to 15). Expanded the period of time charging parties have to file their charges with the commission (180 or 300 days rather than 90 or 210 days). Expanded the period of time charging parties have (90 days rather than 30 days) to file a lawsuit after the EEOC has informed them that it is no longer working on their charge

The Patient Protection and Affordable Care Act (PPACA) of 2010 (Obamacare)

amended by the Health Care and Education Reconciliation Act, is one of the largest U.S. health-care reforms since Medicare legislation in 1965. PPACA provisions are extensive and include a rolling time line of effective dates. Starting in 2014, virtually all citizens and legal residents of the U.S. are required to have minimum essential health coverage.

Portal-to-Portal Act of 1947

amended the FLSA and defined additional rules for hours worked

The Fair and Accurate Credit Transactions Act (FACT Act) of 2003

amends the Fair Credit Reporting Act and provides some relief to employers using third parties to conduct workplace investigations. Under the FACT Act, an employer who uses a third party to conduct a workplace investigation no longer needs to follow the consent and disclosure requirements of the FCRA before commencing the investigation if the investigation involves suspected misconduct, a violation of law or regulations, or a violation of any preexisting written policies of the employer.

e-verify

an Internet-based verification system operated by the USCIS in partnership with the Social Security Administration. The system allows employers to verify the employment eligibility of their employees regardless of citizenship. E-Verify electronically checks the information provided by the employee on his or her Form I-9 against records contained in Department of Homeland Security and Social Security Administration databases.

workweek

any fixed, recurring period of 168 consecutive hours (7 days x 24 hours = 168 hours). An employer's workweek may begin on any day of the week, and it must be consistent from week to week. An employer may have different workweeks for different locations and/or classifications of employees

non exempt employee

are not excluded from minimum wage pay requirements and are entitled to overtime pay.

compensatory damages

awarded to make an injured person "whole." Such damages include compensation for damaged property, lost wages or profits, pain, bereavement, medical expenses, etc., and financial payment for a person's out-of-pocket losses and future expenses due to injury, disability, disfigurement...

The Uniform Guidelines on Employee Selection Procedures

cover all aspects of the selection process, including recruiting, testing, interviewing, and performance appraisals (to the extent that they are used to make employment decisions) The Uniform Guidelines are not in and of themselves law; they are a procedural document to assist employers in complying with Title VII, and other equal employment opportunity requirements of federal law. The guidelines recommend that employers be able to demonstrate that selection procedures that have an adverse (or disparate) impact upon minorities or women are valid in predicting or measuring performance in a particular job. Any selection procedure that has an adverse impact on the hiring of any protected class will be presumed discriminatory and inconsistent with the Uniform Guidelines

National Labor Relations Board (NLRB)

created to enforce the self-organization rights of employees to: Form, join, or assist labor organizations. Bargain collectively through representatives of their own choosing. Engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection. Refrain from any or all such activities.

punitive damages (aka exemplary damages)

damages requested and/or awarded in a lawsuit when the defendant's willful acts were malicious, violent, oppressive, fraudulent, wanton, or grossly reckless. The purpose of punitive damages is to punish the defendant for outrageous misconduct and to deter the defendant (and others) from future similar misbehavior.

comparable worth

deals with pay differentials between women and men who perform comparable—but not equal—work. Comparable worth looks at different jobs that women and men hold that require comparable skills, effort, responsibility, and working conditions. Although the EPA does not require consideration of comparable worth, some states require all public jurisdictions such as school districts to eliminate any sex-based wage inequities

blue-collar worker

defined as those who perform work involving repetitive operations with their hands, physical skill, and energy. The DOL has stated that individuals in these positions will not be exempt no matter how highly they are compensated.

protected class

describes people who are covered under a particular federal, state, or local antidiscrimination law. Individuals may be protected based on their actual membership in a protected class.

The Immigration Reform and Control Act (IRCA) of 1986

designed to accomplish two somewhat divergent purposes. IRCA prohibits discrimination against job applicants on the basis of national origin or citizenship and, at the same time, establishes penalties for hiring undocumented workers, with certain exceptions. Employers who hire someone who is not entitled to work in this country face civil and/or criminal penalties. IRCA is enforced by U.S. Citizenship and Immigration Services (USCIS), a special branch of the Department of Homeland Security (DHS)

disparate treatment

discrimination occurs when an applicant or employee is treated differently because of his or her membership in a protected class. Examples: National origin: A manager always screens out applicants who appear to be of Middle Eastern heritage. Sex: An employer has different entry requirements for women than for men

The Sarbanes-Oxley Act (SOX) of 2002

enacted in response to Enron and other corporate accounting scandals. The act requires that all publicly held companies establish internal controls and procedures for financial reporting to reduce the possibility of corporate fraud.

The Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994

enacted to protect the employment, reemployment, and retention rights of persons who voluntarily or involuntarily serve or have served in the uniformed service The final DOL regulations confirm that USERRA applies to virtually all employers, both public and private, regardless of size, and prohibits discrimination in employment, job retention, advancement, or any benefit of employment on the basis of membership, application for membership, application for service, performance of service, or obligation for service in the uniformed services

Employee Retirement Income Security Act (ERISA) of 1974

establish uniform minimum standards to ensure that employee retirement plans are set up and maintained in a fair and financially sound manner. ERISA is designed to protect the interests of participants in pension and welfare benefit plans and their beneficiaries. Employers are not required to offer a retirement or welfare benefit plan, but if they do have one, it must conform to the applicable requirements of the Internal Revenue Code and ERISA in order for employers and participating employees to receive available tax advantages.

The Occupational Safety and Health Act (OSH Act) of 1970

established the first national policy for workplace safety and health. This federal law requires employers to provide safe and healthful working conditions for employees

Fair Labor Standards Act (FLSA) 1938

establishes minimum wage, overtime pay, youth employment, and record-keeping standards affecting full-time and part-time workers in the private sector and in federal, state, and local governments The FLSA applies to public and private employers with at least $500,000 in annual dollar volume of business (with some limited exception. FLSA covers the following organizations regardless of the dollar volume of their businesses: Hospitals Institutions primarily engaged in the care of the sick, aged, mentally ill, or disabled who reside on the premises Schools for children who are mentally or physically disabled or gifted Preschools, elementary and secondary schools, and institutions of higher education Federal, state, and local government agencies Under certain circumstances, the FLSA may also cover domestic service workers, such as day workers, housekeepers, chauffeurs, cooks, or full-time babysitters). It also applies to organizations with employees who engage in interstate commerce or the production of goods for interstate commerce.

exempt employee

excluded from the minimum wage and overtime pay requirements of the law. To qualify for exemption, these employees must work in a bona fide manner in, for example, executive, administrative, professional, or outside sales positions. In general, they must meet certain tests regarding their job duties and must be paid on a salary basis, with a guaranteed minimum amount no matter how many hours are worked per week, at not less than $455 per week ($23,660/ year)

Drug-Free Workplace Act of 1988

federal contractors with contracts of $100,000 or more as well as recipients of grants from the federal government in any amount must follow requirements to certify that they are maintaining a drug-free workplace. The requirements under the Drug-Free Workplace Act include: Developing a policy that prohibits the unlawful manufacturing, distribution, possession, or use of a controlled substance in the workplace. Specifying the actions that will be taken against those who violate the policy. Providing a copy of the policy and the consequences of violating the policy to employees establishing a drug-awareness program

The Employee Polygraph Protection Act (EPPA) of 1988

generally prevents most private employers from requiring applicants or employees to take a polygraph test for preemployment screening or during the course of employment. There are very limited exceptions.

Wage and Hour Division of the DOL

has broad powers to enforce the FLSA minimum-wage and overtime provisions.

The Pension Benefit Guaranty Corporation (PBGC)

insures payment of certain pension plan benefits in the event that a private-sector defined benefit pension plan lacks sufficient funds to pay the promised benefits. Covered plans or their sponsors are required to pay premiums to the PBGC. In turn, the PBGC guarantees payment of vested benefits (up to a maximum limit) to employees covered by these pension plans. It does not insure retirement plans that do not promise specific benefit amounts—defined contribution plans such as profit-sharing or 401(k) plans.

occupational illness

is a medical condition or disorder, other than one resulting from an occupational injury, caused

occupational injury

is an injury such as a cut, fracture, sprain, or amputation that results from a work-related accident or exposure involving a single incident in the work environment

sex

is the classification of people as male or female; it refers to the biological and physiological characteristics that define men and women (or boys and girls)

Civil Rights Act 1991

jury trials are allowed in cases where the plaintiff seeks compensatory or punitive damages

Americans with Disabilities Act 1990 (ADA)

landmark civil rights law protecting qualified individuals with disabilities from discrimination in many areas. While the discussion here focuses on employment, the act provides other protections for the disabled in government services, public accommodations, and telecommunications As it pertains to employment, the act prohibits discrimination against a qualified individual with a disability because of his or her disability. The passage of the ADA established many responsibilities relating to this class of individuals for all private and state and local government employers with 15 or more employees, employment agencies, labor organizations, and joint labor-management committees. The ADA does not cover the federal government when it acts as an employer

remedies for successful plaintiffs

may include reinstatement, promotion, back pay and benefits, front pay (future wages, usually in lieu of reinstatement), remedial training and/or transfer, injunctive relief, and actual damages. Remedies may also include payment of attorneys' fees, expert witness fees, and court costs.

quid pro quo (sexual harassment)

means "this for that" or "something for something." Quid pro quo harassment occurs when an employee is forced to choose between giving in to a superior's sexual demands and forfeiting an economic benefit such as a pay increase or continued employment.

reasonable accommodation

means modifying or adjusting a job application process, a work environment, or the circumstances under which a job is usually performed to enable a qualified individual with a disability to be considered for the job and perform its essential functions. The ADAAA makes it clear that employers will not be required to provide reasonable accommodation to individuals who associate with a person with a disability or who are regarded as and do not actually have a disability, but consideration for the reasonableness of the accommodation must be given

investigatory review

occurs when a supervisor questions an employee to obtain information that could be used as a basis for discipline or asks an employee to defend his or her conduct

unfair labor practice (ulp)

occurs when a union or an employer violates Section 8 of the National Labor Relations Act. Labor organizations and employers may engage in activities that constitute a ULP singularly or in combination. Common employer ULPs include: Interfering with employees as they engage in concerted activity. Dominating or assisting a labor union. Retaliating against any employee because of union activity

hostile environment (sexual harassment)

occurs when sexual or other discriminatory conduct is so severe and pervasive that it unreasonably interferes with an individual's performance; creates an intimidating, threatening, or humiliating work environment; or perpetuates a situation that affects the employee's psychological well-being

ADA Amendments Act 2013 (ADAAA)

overturned several U.S. Supreme Court decisions that narrowly interpreted the definition of disability. While the ADAAA retains the basic definition contained in the ADA, it expands the interpretation of these elements, making it much easier for individuals seeking the law's protection to demonstrate that they meet the definition of disability. It also directed the EEOC to amend its ADA regulations to reflect the changes made by the ADAAA

Lilly Ledbetter Fair Pay Act of 2009

overturned the Ledbetter 2007 U.S. Supreme Court decision. Under the Ledbetter Act, the statute of limitations resets as the employer issues each allegedly discriminatory paycheck. Additionally, the open-ended nature of the law's coverage of unlawful employment practices, which includes compensation decisions or "other practices," suggests that employees and their families or heirs could file a discrimination lawsuit against an employer regarding benefits such as salary-based defined benefit and contribution-based defined contribution retirement plan payouts and salary-based life insurance proceeds

Title VII of Civil Rights Act

passed to bring about equality in hiring, transfers, promotions, compensation, access to training, and other employment-related decisions. Applies to: Most private employers and state and local governments that have 15 or more employees Educational institutions. Federal government agencies. Public and private employment agencies. Labor unions with 15 or more members. Joint (labor-management) committees for apprenticeships and training.

safe harbor provision

prevents an employer from losing an overtime exemption for improper pay deductions—regardless of the reason for the improper deductions—where the employer: Has a "clearly communicated policy" that prohibits improper pay deductions and includes a complaint mechanism. Reimburses employees for any improper deductions. Makes a good-faith effort to comply in the future

The Genetic Information Nondiscrimination Act (GINA) of 2008

prohibits discrimination against individuals on the basis of their genetic information in both employment and health insurance. Employment decisions based on genetic information are inappropriate because genetic information does not tell the employer anything about an individual's current ability to work.

whistle blower provisions (SOX)

prohibits publicly traded companies (as well as their officers, employees, contractors, subcontractors, or agents) from taking any adverse employment action against employees because of protected whistleblowing activities. The act protects employees who report conduct that they "reasonably believe" violates federal securities laws, the rules of the Securities and Exchange Commission, or any federal law relating to fraud against shareholders

Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985

provides individuals and their dependents who otherwise would lose their coverage due to a COBRA qualifying event with an opportunity to continue receiving health-care coverage under the employer's group health plan at the individual's expense. COBRA qualified beneficiaries must pay the full premium for the coverage. In addition, the plan may elect to charge a qualified beneficiary a 2% administrative fee DOL regulations specify several requirements for the timing and content of COBRA notifications. HR professionals should ensure that they understand all the specific conditions and obligations. In turn, an employee must make COBRA elections within 60 days of the date that he or she loses coverage or the date that he or she was notified of the right to elect COBRA coverage (whichever is later).

bona fide occupational qualification (BFOQ)

reasonably necessary to carrying out a particular job function in the normal operations of the organization

statutes

refer to actions passed by legislative bodies, such as Congress and state legislatures, and by local government units, such as cities and counties. One of the important functions of the court systems is to interpret statutes

gender identity

refers to one's internal, personal sense of being a man or a woman (or boy or girl), which may or may not be the same as one's sexual assignment at birth. It may also be the perception by others and includes a person's appearance, behavior, or physical characteristics that may be in accord with, or opposed to, one's physical anatomy or sex assigned at birth

national origin

refers to the country—including those that no longer exist—of one's birth or of one's ancestors' birth. "National origin" and "ethnicity" often are used interchangeably, although an "ethnic group" can refer to religion or color as well as the country of one's ancestry.

essential functions

refers to the primary job duties that a qualified individual must be able to perform, either with or without accommodation. A function may be considered essential for a variety of reasons, including (but not limited to) the following items: The reason the job exists is to perform the function. There are a limited number of employees available among whom performance of the job function can be distributed. The function may be highly specialized and require specific expertise or ability

gender

refers to the socially constructed system that associates masculinity or femininity with certain roles, behaviors, activities, and attributes. Gender characteristics may vary by culture and may change within a culture over time. Stated another way: Male and female are sex categories, while masculine and feminine are gender categories

The Fair Credit Reporting Act (FCRA) of 1970

regulates the collection and use of consumer credit information. The FCRA's purpose is to protect the privacy of background information and to ensure that the information supplied is accurate. FRCA calls for full disclosure of consumer reports (including credit reports, criminal background checks, motor vehicle history, employment verifications, and reference checks) by consumer reporting agencies (CRAs) so that individuals subject to them can dispute the accuracy, wrongful use, or interpretation of the information Where an employer obtains a consumer report (broadly defined) for employment purposes, the following FCRA provisions generally apply: 1. Written notice and authorization. An employer must clearly and conspicuously notify the individual in writing, in a document consisting solely of that notice, that a report may be used 2. Pre-adverse action. If an employer decides not to hire an applicant or to take some other adverse action with regard to a current employee based in whole or in part on the consumer report, the applicant or employee must be provided with a copy of the report and given "a reasonable period of time" to present evidence challenging the information contained in the report. 3. Adverse action procedures. After the employer has taken adverse action based in whole or in part on the consumer report (as well as any information that the individual submitted in response to the pre-adverse action notice), the employer must give the applicant or employee notice that such action has been taken. 4. Certifications to credit bureaus. Credit bureaus will require employers to certify that they are in compliance with the FCRA and that they will not misuse any information in the report in violation of federal or state laws

Family and Medical Leave Act (FMLA) of 1993

requires employers to allow employees to take time off for certain caregiving, medical, military, and family needs The act covers private-sector employers with 50 or more employees (full- or part-time) for 20 or more workweeks in the current or preceding calendar year. It applies not only to private employers but also to nonprofit organizations and public agencies (regardless of the number of employees), including Congress. To be eligible for FMLA leave, an employee must have worked at least 12 months (total) for the employer, for at least 1,250 hours in the 12-month period preceding the commencement of the leave, and at a site within 75 miles of which 50 or more employees work

disparate (adverse) impact

results when a neutral policy has a discriminatory effect. An example would be nonessential education requirements for certain jobs that impact minority groups looking for work who have been limited in their access to educational opportunities. Example: An organization hires only high-school graduates for custodial positions. Disparate impact is usually unintentional. Employment screening requirements (such as height and weight requirements or disqualification based on arrest records) that appear neutral but have a discriminatory effect on a protected class are considered to have adverse impact

private-sector employee benefit programs (ERISA)

subject to some provisions of ERISA. The legislation applies to and regulates qualified private retirement plans and welfare plans such as employer-sponsored group medical programs, group life insurance, and long-term disability coverage. Many public-sector employers and churches are not subject to ERISA.

other administrative agencies

such as the Occupational Safety and Health Administration (OSHA) and the National Labor Relations Board (NLRB), exercise great influence on how organizations manage their work environments. It is critical that human resource professionals stay current in the activities of these a

Equal Pay Act (EPA) 1963

technically an amendment to the FLSA, prohibits unequal pay for equal or "substantially equal" work performed by men and women. Once a pay disparity is established between a male worker and a female worker performing substantially equal jobs, the burden of proof shifts to the employer to justify its actions.

National Federation of Independent Business v. Sebelius (2012)

the U.S. Supreme Court considered two key PPACA provisions: Medicaid expansion and the individual mandate. Medicaid offers federal funding to states to assist pregnant women, children, low-income individuals, the blind, the elderly, and the disabled in obtaining medical care. PPACA proposed to expand the scope of Medicaid and increase the number of low-income individuals states must cover as well as increase federal funding to cover some of the states' costs in expanding the coverage. But PPACA stipulated that if a state did not comply with the PPACA-expanded Medicaid coverage requirements, the state could lose not only the federal funding for those expanded requirements but all of its federal Medicaid funds. The Supreme Court found that this requirement was unconstitutional because it violated the Tenth Amendment

Ledbetter v. Goodyear Tire & Rubber Co. (2007)

the U.S. Supreme Court ruled against Lilly Ledbetter's claims of sex discrimination in pay under Title VII. The court ruled that Ledbetter's claims were not timely because she did not file discrimination charges with the EEOC within the 180-day time frame, which is a prerequisite for bringing a discrimination lawsuit

prudent person rule

the fiduciary cannot take more risks than a prudent expert investor would under similar circumstances.

the constitution

the highest law in the country and the foundation on which all U.S. law has been built. The Constitution defines the powers of the different federal government branches (executive, legislative, judicial) and how these entities operate and interrelate. The Constitution also provides basic principles, such as fundamental freedoms and rights

cliff vesting

the process by which a retirement benefit becomes nonforfeitable, that is, when the employee is permanently entitled to a portion or all of his or her benefit

vesting

the process by which a retirement benefit becomes nonforfeitable, that is, when the employee is permanently entitled to a portion or all of his or her benefit

sexual orientation

the sexual, romantic, or emotional/spiritual attraction that one feels for persons of the opposite sex or gender, the same sex or gender, or both sexes and more than one gender.

Faragher v. City of Boca Raton (1998) and Burlington Industries, Inc. v. Ellerth (1998)

two U.S. Supreme Court rulings distinguishing between supervisor harassment that results in tangible employment action (such as discharge, failure to promote, or demotion) and supervisor harassment that does not. When harassment results in a tangible adverse employment action, the employer is always liable.