Employer Legal Obligations

Transcription

1 Employer Legal Obligations No. Statute Protected Categories/ 1 IRCA Immigration Reform and Control Act of 1986, 8 USC 1101 nt. et. seq. 2 FLSA Fair Labor Standards Act, 29 USC 201 et seq. 3 EPA Equal Pay Act of 1963, 29 USC 206(d) (Part of FLSA) see above for FLSA cite 4 USERRA The Uniformed Services Employment and Reemployment Rights Act of 1994, 38 USC 4301 et seq. 5 Civil Rights Act of 1866, 42 USC 1981 et seq. 6 OSHA Occupational Safety and Health Act, 29 USC 651 et seq. 7 ERISA Employee Retirement Income Security Act, 29 USC 1001 et seq. Employers with 1 or more employee comply with 1 through 24 All employers are required to verify employee identity and eligibility to work. Retain Form I 9 Failure to properly classify an employee as eligible for overtime and failure to pay overtime, or pay for total hours worked. Misclassification of employee as independent contractor. Different rates of pay for members of one sex as compared to another for the same jobs. (Prohibits pay differentials based on sex for the same job.) Retaliation Discrimination in employment decisions against employees or applicants who have any past, present, or future military obligations. Retaliation Discrimination in hiring, terms/conditions of employment, and discharge from employment on the basis of race or national origin. Retaliation Health or safety violation. Provides minimum requirements for employee pension and welfare benefit plans established and maintained by private employers and mechanisms for enforcement of those requirements by participants and the Federal Dept. of Labor. 8 Common law state law claims Intentional infliction of emotional distress, assault and battery, negligent supervision, hiring, retention, wrongful discharge, defamation, interference with contract? These claims usually arise in the context of discrimination/sexual harassment claims. Consider: contract/at will? Non compete? Worker s comp. bar apply? 9 VHRA The Virginia Human Rights Act, Va. Code et seq. 10 VDA The Virginians with Disabilities Act, VA. Code et seq. 11 NLRA National Labor Relations Act 29 USC Discrimination on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, disability in places of public accommodation (including educational institutions and real estate transactions), and in employment. (Silent on retaliation.) Discrimination against an otherwise qualified person with a disability solely because of the disability. Workers may engage in concerted activity for mutual aid and protection regardless of whether unionized workplace (i.e. it is unlawful to prohibit sharing of their own salary). All employers are required to verify employee identity and eligibility. Generally all employers must comply/some exceptions Individuals & company may be liable. Punitive damages available. Employer has burden of proof which may be by clear and convincing evidence. All employers must comply. All employers. All employers of any size. Individuals and corporations may be liable. Individual liability applies. Four year statute of limitations. All employers must comply. All employers maintaining an employee benefit plan (i.e., health insurance, pension, etc.) must comply. All employers Individuals may be liable. All employers of any size are liable to any employee. Employees must file an administrative claim with the Virginia Commission on Human Rights. All employers of any size are liable (except those covered by the Rehabilitation Act) and an employee may file an administrative claim or may sue the employer directly in a court action. Almost all private employers engaged in interstate commerce.

2 12 Sarbanes Oxley Act of 2002; P.L ; 806 (18 USC 1514A), 1107 (18 USC 1513(e)) 13 Dodd-Frank Wall Street Reform and Consumer Protection Act 14 VFATA - Virginia Fraud Against Taxpayers Act, Va. Code et seq. Retaliation for reporting corporate fraud or accounting abuses or for filing, testifying or participating in proceedings relating to alleged violations of corporate fraud laws or regulations. Claims that a company retaliated for whistleblowing on a company regarding any truthful information relating to the commission or possible commission of any federal offense. Provides significant incentive for financial industry whistleblowers to assist the government to root out fraudulent practices and unlawful conduct. Amends and is broader than Sarbanes-Oxley Act of 2002 Claim against a company doing business with the Commonwealth of Virginia, state institutions and agencies that the company is making false claims to a Virginia state agency. All public companies engaged in interstate commerce. Applies to all publicly traded companies and privately held subsidiaries of those companies. All employers doing business with the Commonwealth of Virginia, including state institutions and agencies. 15 PPACA Patient Protection and Affordable Care Act (PL ) Listing of other statutes 25 IRCA - Immigration Reform and Control Act of 1986, 8 USC 1101 nt. et seq. 26 Private cause of action under Virginia Human Rights Act, Va. Code Title VII - Title VII of the Civil Rights Act of 1964, 42 USC 2000e et seq. 28 ADA - Americans with Disabilities Act, 42 USC et seq. 29 GINA - Title II of the Genetic Information Nondiscrimination Act of 2008, 42 USC 2000ff et seq. 30 ADEA Age Discrimination in Employment Act, 29 USC 621 et seq. Non-exempt employees must be given a reasonable break time and place to express breast milk. Employers with 4 or more employees comply with Nos. 1 through 25 No employer may discriminate against any individual (other than all unauthorized aliens) with respect to hiring, or recruitment, or referral for a fee, of the individual for employment or the discharging of the individual from employment on the basis of the individual s national origin or because of an individual s citizenship status. Employers with 6 14 employees *** comply with Nos. 1 through 26 No employee may be discharged on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, or age (40 and older). All employers with 50 or more employees must comply. If fewer than 50 employees must show how law imposes undue hardship. Employers with 4 or more employees. Employers with 15 or more employees comply with Nos. 1 through 29 Discrimination regarding hiring, terms/conditions of employment or discharge because of individual s race, color, religion, sex (including pregnancy) or national origin. Retaliation No covered entity shall discriminate against a qualified individual with a disability because of the disability of the individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training and other terms, conditions and privileges of employment. Retaliation. (Must not discriminate against qualified individual with a disability who can perform the essential functions of the job either with or without a reasonable accommodation. A person with a disability is a person who is substantially limited in a major life activity.) Discrimination regarding hiring terms/conditions/compensation/opportunity of employment or discharge because of genetic information with respect to the employee. Unlawful request/acquisition of genetic information. Retaliation Employers with 20 or more employees comply with Nos. 1 through 31 It is unlawful for a covered employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual Employers employing from 6 to 14 persons are liable. The employee may directly sue the employer under this statute. Employee must file w/in 300 days if in a deferral agency state such as Va. Employee must file w/in 300 days if in a deferral agency state such as Va. Employers with 20 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding

3 31 COBRA Consolidated Omnibus Budget Reconciliation Act, 29 USC 1161 et seq. with respect to his compensation, terms, conditions, or privileges of employment, because of such individual s age; to limit, segregate or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee because of the individual s age, or reduce the age rate of any employee in order to comply with this Act. Applies to age 40 and older. Retaliation Failure to notify of the right to extend healthcare coverage after employment termination. calendar year. Employers with 50 or more employees comply with Nos. 1 through ACA Affordable Care Act, 26 U.S.C. 5000A Mandates employer provided health plan coverage for full time employees (30 hours or more a week) that is affordable and provides minimum essential coverage. Establishes health plan exchanges for employers of <50 FTE employees and for individuals. 33 FMLA Family and Medical Leave Act, 29 USC 2601 et seq. Eligible employees are entitled to 12 work weeks of leave during any 12 month period for birth of a child of the employee or to care for a child, placement of a child with employee for adoption/ foster care; care for spouse, son, daughter or parent of employee with serious health condition; serious health condition that makes the employee unable to perform functions of employee s position, or for any qualifying exigency arising out of the fact that the employee s spouse, son, daughter, or parent is a covered military member on covered active duty. In the event that leave is needed to care for a covered servicemember with a serious injury or illness who is the spouse, son, daughter, parent, or next of kin to the employee, twenty six workweeks of leave are available. Eligible employees shall have worked for at least 12 months and for 1,250 hours in the preceding 12 months. Retaliation All employers maintaining an employee benefit plan who employ 20 or more persons on at least 50% of its typical business days during the prior calendar year. Employees with 50 or more FTE employees must offer health plan coverage or pay penalties. Employers with 50 or more employees for each workweek during each 20 or more workweeks in the current or preceding calendar year. The 50 employees are counted among all employer work sites within a 75 mile radius. Employees means full time, parttime, temporary, on leave i.e., anyone on payroll counts. Individuals and corporations may be liable. 34 EE0 1 Executive Order No Annual EEO 1 report required. Federal contractors only. Federal contractors with 50 or more employees. 35 EE0 1 Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e to 2000e3 36 WARN Worker Adjustment and Retraining Notification Act, 29 USC 2101 et seq. 37 Retaliation. Title VII, ADEA, ADA, EPA, FMLA, USERRA, FLSA, ERISA, 1981 GINA, VFATA, Dodd Frank 38 FCRA. Background Checks. Fair Credit Reporting Act 15 USC 1681 et seq. 39 FACTA. Identity Theft. Fair and Accurate Transactions Act (amends FCRA) Employers with 100 or more employees comply with Nos. 1 through 36 Annual EEO 1 report required. Any employer. Failure to provide 60 days notice of plant termination or mass layoffs (loss at a single site of employment during any 30 day period for at least 50 employees, excluding part time employees). ALL EMPLOYERS CONSIDER Applicability Any adverse job action taken as a direct result of bringing on or participating in a claim of an illegal employment practice or making a whistleblower claim. Governs fairness and required procedures for background checks. Any employer with 100 or more employees. Any business enterprise that employs: 100 or more employees, excluding part time employees; or 100 or more employees, including part time employees, who in the aggregate work at least 4,000 hours per week (exclusive of overtime). See above and below for each statute application. Any employer using third parties for background checks. Governs investigations of employee misconduct, disposal of employee All employers under specified circumstances in Act/regulations. information, and initiates identity theft protection rules (Red Flags). 40 Identity Theft. State law Va. Code 18.2 Requires positive disclosure in the event of a data breach regarding All employers in Virginia. Most states have similar law.

4 186.6 computerized data where employees name and social security number are identified together. 41 Federal Contractors. Rehabilitation Act of USC 791et seq. Discrimination against a qualified person with a disability (same standards as ADA). Also now required to participate in E verify. 42 Federal Contractors. E Verify. Internet based employee verification program. 43 Fair Pay Act of Publ. No , 123, Stat.5 44 PPACA Patient Protection and Affordability Act (PL ) Covered contractors and subcontractors must enroll in E Verify within 30 calendar days of the contract/subcontract date. EEOC charges under Title VII, ADEA, ADA may be filed up to 180/300 days after receiving a paycheck subject to a discriminatory pay decision/practice regardless of when the discrimination began. Whistleblower protection to those who report abuses or fraudulent conduct in the delivery of health care through the use of public monies. Employers with federal contracts exceeding $10,000 and subcontractors with contracts in excess of $10,000 that support the performance of prime governmental contracts. Employers receiving federal financial assistance. Prime federal contracts for 121 plus days performance and $100,000 or more. Subcontractors of such prime contracts and with a subcontract value of over $3,000. Applies to discriminatory pay practices/decisions based upon Title VII, ADEA and ADA. Employers involved with medical care in conventional settings such as hospitals, clinics, physician offices. * Other acts applying to companies with 1 14 employees: 16. Consumer Credit Protection Act of Employee Polygraph Protection Act of Fair and Accurate Credit Transactions Act of 2003 (FACT) 19. Fair Credit Reporting Act of 1969 ' 20. Federal Insurance Contributions Act of 1935 (FICA) (Social Security) 21. Health Insurance Portability and Accountability Act (HIPAA) of 1996 (if company offers other benefits) 22. Hiring Incentives to Restore Employment Act of 2010 (HIRE) 23. Lilly Ledbetter Fair Pay Act of National Labor Relations Act of 1947 REMEMBER Make sure you have all required posters on display (federal and state). Make sure your independent contractor arrangements are truly with independent contractors and not employees. Make sure you have a data retention policy that preserves electronic data when you know about or reasonably should anticipate litigation. Do you have any software for which you cannot prove today is licensed to you? (Must maintain copies of all licenses.) Do you need non competition, non solicitation, confidentiality and intellectual property agreements? Do you have offer letters that change the at will relationship?

5 Employment Group P.O. Box 1998 Richmond, VA (804) (phone) (804) (fax)