Laborpedia

The Americans with Disabilities Act (ADA) is a federal law that prohibits discrimination in several areas, including employment and access to state and local government programs and services. Title I of the ADA applies to public and private employers with 15 or more employees and state and local government employers. The ADA protects both workers and applicants and covers various areas of compliance like reasonable accommodations. Note that some state and local laws offer similar protections that apply to employers with fewer than 15 employees.

As part of the American Recovery and Reinvestment Act (ARRA) of 2009, a law entitled Health Information Technology for Economic and Clinical Health (HITECH) sought to strengthen the privacy and security provisions of 1996's Health Insurance Portability and Accountability Act (HIPAA).

The U.S. Department of Health and Human Services (HHS) then issued specific regulations concerning breaches of personal health information (PHI) by covered entities and their business associations who work with, retain, store and transmit health information.

The breach rule requires all those handling "unsecured" PHI to notify the affected individuals when their information has been breached, and in cases involving 500 or more individuals, to notify HHS and its Office of Civil Rights (OCR) as well as the media. For smaller breaches, reporting to HHS can be done annually.

The key word here is "unsecured," which HHS defined as meaning either the information has been so encrypted as to be indecipherable or the information has been destroyed.

The Civil Rights Act of 1991 sought to end confusion arising from differing provisions of the Civil Rights Act of 1866, also called Section 1981, and the Civil Rights Act of 1964. The former barred discrimination based solely on race and color, while the latter added the protected categories of sex, religion, and national origin. More significantly, Section 1981 allowed for jury trials (though the act went unenforced for a century), and the 1964 Civil Rights Act allowed only for court trials since the authors assumed Southern juries would be biased. Finally, the earlier law provided for relief only in the form of back pay, reinstatement, and injunctions against further misconduct but not for attorneys' fees.

Thus individuals seeking legal action for different types of discrimination were subject to different rules. Several court cases sought to reconcile Section 1981 and the Civil Rights Act of 1964, but these decisions in turn established various legal hurdles based on language in Section 1981 and also shifted the burden of proof to the employees (plaintiffs).

The final compromise version of the Civil Rights Act of 1991 allowed for jury trials while leaving employees with most of the burden of proof. Basically, the act allows employers to show that their alleged discriminatory employment decision would still have been made in the absence of any discriminatory intent. This then becomes a defense against backpay, reinstatement, and other remedies but not against overall liability, unless the plaintiff can show an actual negative impact on wages or other outcomes. In short, employers could get off most of the hook by showing their decision was not based solely on discriminatory intent, but they would still be liable for paying all attorneys' fees, fixing the loophole in Section 1981.

The Family and Medical Leave Act (FMLA) provides eligible employees up to 12 weeks of unpaid leave a year to treat a serious health condition, to care for a seriously ill family member, or for the adoption or birth of a child. It also requires group health benefits to be maintained as if employees continued to work instead of taking leave. Generally, the FMLA covers employers with 50 or more employees within a 75-mile radius. In some instances, however, smaller entities may be covered by a state family leave law that offers similar protections and benefits as the federal FMLA. Some states also have to adhere to the concept of “dual coverage.” “Dual coverage” occurs when businesses have to comply with

specific state family leave laws AND the federal FMLA.

Under some federal, state, and local statutes and regulations, specific forms, notices, or posters must be displayed in the workplace or provided to employees. Such resources, such as labor law posters, are “mandatory.” On those mandatory resources, addresses, phone numbers, and other non-legislative information are added, updated, or removed. These

changes may not require employers to replace the entire poster to remain compliant. items are resources required to be distributed by employers under specific circumstances (i.e., type of business, employee size, etc.).

A federal law called The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996 directed all states to implement regulations requiring employers to report new hires to a state directory within 20 days of starting the job. The purpose of the new hire reporting requirement is to reduce any delay in establishing wage withholding immediately for parents who are delinquent in their child support payments.

Though many states publish their own new hire reporting forms, the employee's IRS W-4 form is an acceptable method of reporting new hires to state directories. Employers may also report electronically.

OSHA's Occupational Noise Exposure standard (29 CFR 1910.95) mandates that, if employees are exposed to an eight-hour, time-weighted average of 85 decibels or greater, employers must implement an effective hearing conservation program.

The rule generally pertains to businesses with workspaces that maintain consistent noise levels from machinery, vehicles, or equipment that exceed the 85-decibel threshold.

In these situations, the employer must ensure that each employee is informed of the following: the effects of hazardous noise on hearing; the purpose of hearing protectors; the advantages, disadvantages, and attenuation of various types of hearing protectors, along with instructions on hearing protector selection, fitting, use, and care; the purpose of audiometric testing; and an explanation of audiometric test procedures.

Businesses must post OSHA's Occupational Noise Exposure standard (29 CFR 1910.95) and implement a hearing conservation program.

Generally speaking, overtime pay refers to a compensation an employee receives for working beyond their normal working hours. Federal overtime pay is set by the Fair Labor Standards Act (FLSA). Under the FLSA, employers must pay non-exempt workers overtime pay for hours worked more than 40 in a workweek at a rate not less than one and one-half their regular pay rate. In addition to federal overtime pay, individual states can also enact overtime laws that may go beyond the provisions set by the FLSA.

The Patient Protection and Affordable Care Act (PPACA), signed into law in March 2010, has since come to be known simply as the Affordable Care Act. Please visit that section for further details.

More than 20 employment laws contain provisions that require employers to create, maintain, and retain certain personnel records. The agencies that enforce employment laws are empowered to request and review your personnel records during an investigation or audit.

Non-compliance with recordkeeping requirements can result in significant fines and penalties. Additionally, failure to meet recordkeeping requirements can prove costly in an employee lawsuit, as personnel records are commonly used as part of an employer's defense in a wrongful discharge or discrimination lawsuit.

Some of the major laws requiring specific recordkeeping are the following: Age Discrimination in Employment Act (ADEA); Americans With Disabilities Act (ADA); Employee Polygraph Protection Act (EPPA); Equal Pay Act of 1963 (EPA); Fair Labor Standards Act (FLSA); Family and Medical Leave Act (FMLA); Immigration Reform and Control Act (IRCA); Internal Revenue Code; Occupational Safety and Health Act (OSH Act); OSHA's Bloodborne Pathogens Standard; and Title VII of the Civil Rights Act. There are also state laws and regulations as well as federal labor and OSHA regulations that require paperwork.

Section 504 of the Rehabilitation Act of 1973 is a national law that protects qualified individuals from discrimination based on their disability. The nondiscrimination requirements of the law apply to employers and organizations that receive financial assistance from any Federal department or agency, including the U.S. Department of Health and Human Services (HHS). These organizations and employers include many hospitals, nursing homes, mental health centers, and human service programs. Section 504 forbids organizations and employers from excluding or denying individuals with disabilities an equal opportunity to receive program benefits and services. It defines the rights of individuals with disabilities to participate in, and have access to, program benefits and services.

Section 504 protects qualified individuals with disabilities. Under this law, individuals with disabilities are defined as persons with a physical or mental impairment which substantially limits one or more major life activities. People who have a history of, or who are regarded as having a physical or mental impairment that substantially limits one or more major life activities, are also covered. Major life activities include caring for oneself, walking, seeing, hearing, speaking, breathing, working, performing manual tasks, and learning. Some examples of impairments that may substantially limit major life activities, even with the help of medication or aids/devices, are AIDS, alcoholism, blindness or a visual impairment, cancer, deafness or hearing impairment, diabetes, drug addiction, heart disease, and mental illness.

In addition to meeting the above definition, for purposes of receiving services, education, or training, qualified individuals with disabilities are persons who meet normal and essential eligibility requirements. For purposes of employment, qualified individuals with disabilities are persons who, with reasonable accommodation, can perform the essential functions of the job for which they have applied or have been hired to perform. (Complaints alleging employment discrimination based on disability against a single individual will be referred to the U.S. Equal Employment Opportunity Commission for processing). Reasonable accommodation means an employer must take reasonable steps to accommodate your disability unless it would cause the employer undue hardship.

A “minimum wage” is the lowest amount you can legally pay an employee per hour of work. Under the Fair Labor Standards Act (FLSA), the federal government sets a minimum wage for all United States employees. However, states and local municipalities can also set minimum wage rates. If the state or local minimum wage is lower than the federal minimum, employers must pay at least the federal minimum wage rate. If the state or local minimum wage is higher than the federal rate, employers must pay whichever rate is higher.

Title VII of the Civil Rights Act of 1964 (Title VII), as amended, protects employees and applicants from employment harassment and discrimination on the basis of race, color, national origin, sex (including pregnancy, sexual orientation, and gender identity), or religion. Title VII protections cover all aspects of employment, including hiring and firing, compensation, job postings, promotions, and other employment decisions. While Title VII applies to employers with 15 or more workers, some state and local governments have similar discrimination laws that cover employers with fewer than 15 employees.

Vacation pay is a typical employment benefit granted to full-time employees who have completed a probationary period and have served the employer for a specific period of time. It is usually offered as an accrued benefit. Vacation pay also benefits the employer because paid time off from work improves productivity and morale.

There are no federal laws that govern the accrual of vacation pay, nor is there any federal law that mandates vacation pay for employees. Federal statutes leave the matter of vacations up to the employer and the employee. However, many states have passed specific laws governing the administration of fringe benefits including vacation pay.

Violence in the workplace is a leading cause of occupational injuries and fatalities among late-night retail businesses, social services occupations, taxi drivers, and other types of businesses that deal directly with the public. While employers and employees in these industries understand that violence is an occupational hazard, many employers in general industry establishments fail to address the possibility of violent incidents occurring in the workplace.

The Federal Occupational Safety and Health Administration (Fed-OSHA or just OSHA) has provided outreach to industries suffering the highest rate of injuries and fatalities due to workplace violence. While no OSHA standard currently addresses workplace violence specifically, the General Duty Clause of the OSH Act requires employers to provide a "form of employment and place of employment free from recognized hazards." Since violence is a recognized hazard, employers must prevent its occurrence in the workplace.

Employers have found that one of the most effective means of ensuring the prevention of violence is by adopting a "zero tolerance" policy, which treats each act of violence promptly with discipline or termination.

The Worker Adjustment and Retraining Notification Act (WARN) protects workers, their families, and communities by requiring employers to provide advance notification of plant closings and mass layoffs. Advance notice allows workers and their families time to adjust to the loss of their jobs, gives them ample time to seek and obtain other jobs, and allows them to seek training or retraining to help them compete in the job market.

The WARN Act covers employers with 100 or more employees, not counting those who have worked less than six months in the past year and those who work an average of fewer than 20 hours a week. The law is enforced by the U.S. Department of Labor's Employment and Training Administration (ETA).

A covered plant closing occurs when a facility or operating unit is shut down for more than six months, or when 50 or more employees lose their jobs during any 30-day period at a single site of employment. A covered mass layoff occurs when a layoff of six months or longer affects either 500 or more workers or at least 33 percent of the workforce when the layoff affects between 50 and 499 workers. The number of affected workers is the total number laid off during a 30-day period (in some cases, a 90-day period).

Workers' compensation laws are designed to provide fixed monetary awards to employees who are injured or disabled on the job, thereby representing a compromise between employer and employee that eliminates the need for litigation. Such laws are regulated and enforced at the state level, though there are federal workers' compensation laws that apply to federal workers, maritime workers, and mine workers.

Every state (except for Texas) requires employers to obtain workers' compensation coverage. Most states allow employers to self-insure. Failure to obtain or establish coverage can result in heavy penalties, from monetary fines to imprisonment. State workers' comp laws impose varying limits and restrictions on filing procedures, filing periods, cash benefits, settlements, and even the types of injuries deemed "compensable."

Employers may comply with their state's insurance coverage requirement via various coverage options, including commercial insurance, self-insurance, state funds, residual insurance, and other insurance alternatives available in their state.

The 1996 amendments to the Fair Labor Standards Act (FLSA) included a provision that allows FLSA-covered employers to pay a special wage rate to workers under 20 years of age for the first 90 consecutive days of employment. The special wage rate is lower than the federal minimum wage.

Section 6(g) of the FLSA permits covered employers to pay employees under the age of 20 a special minimum wage rate of $4.25 per hour for the first 90 consecutive days of employment or until the employee turns 20 years of age, whichever occurs first. The 90 days are calendar days, not work days. When the 90 days expire or the employee turns 20, the federal minimum wage then applies.

In states that have legislated higher youth minimum wages, the state's rate will apply, not the federal $4.25 rate. The same applies if the state minimum wage is higher than the federal rate.