Navigating Through the Labor Law Maze
By James Harwood – CEO, Total HR

The following are a just a sample of some more common labor laws of which employers need to be aware, and in compliance with, as they manage their business day in and day out. Understanding, practicing and complying with these various laws can be overwhelming for small business owners focused on managing and growing their business. At the same time, failing to properly practice them can lead to significant issues down the road. This brief summary of each law is designed to help managers make a bit more sense of it all.

Harassment in the workplace: The Equal Employment Opportunity Commission (EEOC) and Civil Rights Departments from several States have mandated that all companies provide information to their employees, applicants, and vendors regarding harassment in the workplace. Failure to comply with this law can result in costly lawsuits and liabilities of up to $50,000.00 per complaint. Claims of workplace harassment are the most common types of complaints filed with state and federal agencies. Recent court decisions indicate that employers may be responsible; even if they were unaware the harassment was taking place. The best defense against workplace harassment complaints is to have written policies and procedures in place.

Sex Discrimination: Sex discrimination is the most prevalent form of workplace discrimination facing today’s workforce. Employee complaints of compensation discrimination, sexual harassment, gender bias, and pregnancy discrimination can result in costly lawsuits. Damages in sex discrimination cases routinely exceed $1 million. To ensure equal employment opportunity, employers are required to comply with the provisions Title VII of the Civil Rights Act, the Pregnancy Discrimination Act, and the Equal Pay Act. Complying with these complex anti-discrimination laws can be a daunting task, particularly when considering that companies can be held liable for the actions of their designated supervisors and managers.

Family Medical Leave Act: Under the FMLA, eligible employees are allowed to take 12 weeks of unpaid, job-protected leave in a given 12 month period to care for a newborn child, to give birth to a child, to provide care to a seriously ill immediate family member, or to treat their own serious health condition. Employees are only eligible for FMLA leave if they have been employed for at least 12 months by a covered employer and have performed at least 1250 hours of work during the last 12 months. A covered employer is any employer with 50 or more employees on payroll within a 75-mile radius. It sounds simple enough, but since 1993, employers throughout the country have struggled to comply with the various provisions of the Family Medical Leave Act (FMLA). The most often cited centers of confusion in the law itself are those sections that discuss leave calculation methods, excessive leave time, and what constitutes a serious health condition.

Fair Labor Standards Act: Also known as the Wage-Hour Law, the FLSA was enacted in 1938 and requires most employers to pay non-exempt workers at least minimum wage, as well as an overtime wage rate of at least one and one-half times the employee’s regular pay rate for each hour worked in excess of 40 hours in a workweek. The law addresses wages, hours, overtime, recordkeeping, employment of minors, disabled workers, full-time students, learners, and apprentices. It allows recovery of wages and penalties for violation. Every employer employing workers who are subject to the FLSA minimum wage provisions must post a notice explaining FLSA requirements. This notice must be kept posted where it is accessible for both employees and job applicants.

Immigration Reform and Control Act of 1986: This act is structured to control illegal immigration to the U.S. and prohibits the employment of unauthorized foreign nationals. All employers and employment agencies are barred from hiring, continuing to employ, or refer aliens who are not authorized to work in the U.S. This act applies to all individuals hired after November 6, 1986. Employers are required to verify an individual’s eligibility to work in the U.S. by examining identification documents required by law (Immigration and Naturalization Service Employment Verification Form I-9). Employers must obtain a completed I-9 within three days from the date of hire. These forms must be kept for three years after an applicant is hired or one year beyond the date of termination, whichever is longer. Fines for failure to comply with verification and recordkeeping requirements range from $100 to $1,000. Fines for hiring an illegal alien range from $250 to $10,000.

Uniformed Services Employment and Reemployment Rights Act (USERRA): In the event of a war or a national emergency, employees who are members of the Reserves, the National Guard, or other uniformed services have a legally protected right to take an unpaid military leave of absence from their job to perform active or inactive military service. In 2001, thousands of Reservists and National Guard members were activated post 9/11 to initiate Operation Enduring Freedom. With war abroad becoming more likely, and with America facing an increasing threat of terrorist activity, employers need to be prepared to properly handle leave requests and grant certain employment benefits to employees taking leave. The Uniformed Services Employment and Reemployment Rights Act (USERRA) requires all employers to provide employment protection, benefits continuation, reemployment, and job accommodation to any employee who requests a military leave of absence. Additionally, employers are prohibited from discriminating against individuals based on their military affiliation. Failure to abide by the provisions of USERRA can result in enforcement action against your company by the Veterans Employment and Training Service (VETS), a division of the U.S. Department of Labor. Penalties for non- compliance include prosecution, judgments for back wages, and liquidated damages.

Americans with Disabilities Act (ADA): Over the last 13 years, Title I of the Americans with Disabilities Act (ADA) has become one of the most burdensome and confusing employment laws affecting the workplace. The ADA applies to employers of 15 or more employees and seeks to prevent workplace discrimination on the basis of a disability. Enacted in 1990, the ADA has provided relief and protection for disabled employees seeking new employment, re-employment, or job accommodation. The Equal Employment Opportunity Commission receives close to 10,000 complaints of disability discrimination under the ADA each year.