This guide is meant to be a general overview of a few of the legal requirements you are required to follow as an employer in the United States.
AREAS OF EMPLOYMENT LAW
NONDISCRIMINATION LAW
Employees may not be discriminated against due to:
- Race
- Religion
- Sex
- National origin
- Age
- Disability
- Pregnancy
- Sexual orientation (CA, CO, CT, DE, HI, IA, IL, MA, MD, MN, NH, NJ, NM, NV, NY, OR, RI, UT, WA, WI as of December 2, 2016)
- Gender identity (CA, CO, CT, DE, HI, IA, IL, MA, MD, MN, NJ, NM, NV, OR, RI, UT, WA as of December 2, 2016)
WAGE AND HOUR LAWS
Employees must be:
- Paid their state’s minimum wage
- Compensated appropriately for overtime
- Classified correctly as an employee or contractor
Does your business need to comply with the Fair Labor Standards Act?
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LEAVE OF ABSENCE REGULATIONS
If an employee requests family or pregnancy-related leave, his or her job must be protected, provided the employer and employee meet the Federal Family and Medical Leave Act guidelines and their state’s complementary laws.
MILITARY LEAVE REGULATIONS
Employees returning from military leave have the right to get their jobs back if they served five years or less of duty.
SAFETY LAWS
All employees are covered under the Occupational Safety and Health Act (OSHA) and have the right to a safe work environment.
IMMIGRATION LAWS
Employers must follow U.S. immigration laws and determine if the candidates are legally eligible to work in the United States.
FEDERAL LAWS REGULATING EMPLOYMENT
NATIONAL LABOR RELATIONS ACT (NLRA) - ENACTED 1935
Who Must Comply?
The law applies to any employer, regardless of whether it has unionized employees.
Exempt industries: airlines, railroads, agriculture, and government.
Who Enforces the NLRA?
The National Labor Relations Board.
What Does the NLRA Regulate?
The National Labor Relations Act guarantees the right of employees to:
- Join a union; organize
- Collective bargaining with their employer
- Section 7 rights - permission to discuss terms and conditions of employment such as wages; permission to engage in activity for “mutual aid and protection”
A Trending NLRA Issue
There is a conflict in the use of social media in the workplace. Most employers limit what employees may post on social media, however, if the rules interfere with Section 7 rights, the employer may be facing legal action.
AMERICANS WITH DISABILITIES ACT (ADA) - ENACTED 1990
Who Must Comply?
All employers with 15 or more employees.
Who Enforces the ADA?
United States Department of Justice Civil Rights Division.
What Does the ADA Regulate?
The Americans with Disabilities Act prohibits discrimination against “qualified individuals with disabilities” in all employment practices, including:
- Job application procedures
- Hiring
- Firing
- Advancement
- Compensation
- Training
- Recruitment
- Advertising
- Tenure
- Layoffs
- Leave
- Fringe benefits
How Is Disability Defined by the ADA?
An individual has a disability according to the ADA if they have:
- A physical or mental impairment that substantially limits one or more major life activities
- Are regarded as having such impairment
An impairment that is not considered to limit a major life activity is not considered impaired under the ADA.
ADA Amendments Act of 2008
The amendments act made changes to the definition of the word “disability,” clarifying that determination of whether a person is disabled must be made without considering any mitigating measures such as medications that eliminate the symptoms.
Example
An employee with epilepsy controlled by medication may still be disabled if he or she meets other requirements of the law.
The amendment emphasizes that the definition of disability should be treated broadly to cover individuals to the maximum extent permitted by the terms of the law.
FAMILY AND MEDICAL LEAVE ACT (FMLA) - ENACTED 1993
Who Must Comply?
Private business; state and local government; and some federal employers with at least 50 employees within 75 road miles of each other must follow the provisions of the FMLA.
Who Enforced the FMLA?
The United States Department of Labor
What Does the FLMA Regulate?
The Family and Medical Leave Act requires covered employers to grant an eligible employee up to a total of 12 work-weeks of unpaid leave during any 12 month period for one or more of the following reasons:
- Birth and care of a newborn child of the employee
- Placement the employee of a son or daughter for adoption or foster care
- Care for an immediate family member with a serious health condition: spouse, child, or parent
- Taking of medical leave when the employee is unable to work because of a serious health issue
The FMLA also prohibits employers from interfering with, preventing, or denying any rights provided by the law.
FLMA Amendment of 2009
An amendment was made to the FLMA in 2009 to include additional rules about granting leave for employees who need to care for family members who were injured in the course of military service.
RECENTLY CHANGED LAWS
Vietnam Era Veteran’s Readjustment Act (VEVRAA) of 1974 and Section 503 of the Rehabilitation Act of 1973
Who Administers These Programs?
The United States Department of Labor Office of Federal Contract Compliance Programs enforces VEVRAA and Section 503 of the Rehabilitation Act.
What Are the Changes?
Affirmative Action requirements for covered federal contractors and subcontractors were put into place, including:
- Measurable hiring targets
- New record-keeping and data tracking obligations
- Requirement to strive for an “aspirational utilization goal” for hiring qualified individuals with disabilities
- Inviting applicants to voluntarily self-identify as protected veterans or disabled individuals at both the pre-offer and post-offer stages via an OFCCP-compliant form
A NOTE ABOUT THE OVERTIME FINAL RULE OF THE FEDERAL FAIR LABOR STANDARDS ACT
The Department of Labor recently issued changes that significantly increased the minimum salary requirement for some of the exemptions under the FLSA.
The change increased the salary threshold for executive, administrative, and professional employee exemptions from $455 per week ($23,000 annually) to $913 per week ($47,476 annually). The threshold automatically updates every three years based on wage growth over time.
These changes were to go into effect on December 1, 2016. However, on November 22, 2016, the U.S. District Court for the Eastern District of Texas granted an Emergency Motion for Preliminary Injunction, preventing the U.S. Department of Labor from implementing and enforcing the Overtime Final Rule on the expected date.
At the time of this writing, the court has yet to make a final decision about whether the Overtime Final Rule is lawful.
This is just a brief outline of some of the major employment laws in the United States. If you have any questions about employment law, contact a knowledgeable labor attorney.
Resources
U.S. Department of Labor
U.S. Department of Justice
The National Law Review. Accessed 12/2/2016, http://www.natlawreview.com/article/new-overtime-regulations-put-hold-us-federal-court-judge-enjoins-implementation-flsa.