1. Age Discrimination in Employment Act (ADEA) – The Age Discrimination in Employment Act prohibits discrimination on the basis of age (beyond 40) in programs and activities receiving federal financial assistance. The protection applies to hiring, promotion, discharge, compensation or terms, conditions, or privileges of employment.
In 1967, Congress recognized that older workers found themselves disadvantaged in their efforts to retain employment. The problems were even worse when those older workers sought to regain employment after being displaced from jobs. In adopting the Age Discrimination in Employment Act (ADEA), legislators sought to eliminate arbitrary limits and to promote employment based on merit and ability rather than age. The impact of the 1967 law was – and continues to be – quite extensive, reaching into all aspects of recruitment and hiring, salary and retirement benefits, training and job assignments.
Yet ADEA is not a law for senior citizens only. It prohibits age discrimination against employees and job applicants aged 40 or older. It prohibits employers from failing or refusing to hire individuals based on age, from firing based on age, and from otherwise discriminating “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” Congress may, in fact, have been prophetic in anticipating the future areas of contention by including language e in ADEA that covers virtually every aspect of executive decision making with respect to older employees. Thus, it is unlawful to classify employees or to separate them based on age if doing so would in any way “deprive or tend to deprive” an individual of an employment opportunity or otherwise adversely affect his or her status as an employee.
ADEA also applies to employment agencies and labor organizations. An employment agency may not refuse to refer a job applicant, classify or establish referral systems, or otherwise discriminate against a prospective employee based on age. Similarly, a labor union may not prevent older employees from joining its ranks, and likewise may not establish classification systems to limit or segregate its members based on age. Like an employer, a labor organization may not act in any way that would “deprive or tend to deprive” an individual of an employment opportunity or otherwise adversely affect his or her status as an employee or as a job applicant, because of such individual’s age. In fact, a labor organization violates ADEA if it causes or attempts to cause an employer to discriminate against job applicants or employees based on age.
2. Americans with Disabilities Act (ADA) – The Americans with Disabilities Act requires employers to make reasonable accommodation to enable disabled employees to do their jobs. Unlike FMLA, it is focused on accommodating employees so that they can stay at work rather than take leaves of absence. Some employees qualify for benefits under both laws.
The ADA prohibits discrimination of U.S. individuals with disabilities in employment, transportation, public accommodation, communications, governmental activities, and telecommunications relay services. Several agencies share enforcement authority: DOL, Equal Employment Opportunity Commission (EEOC), Department of Transportation, Federal Communications Commission, and the Department of Justice (DOJ).
In the employment sector, the law outlaws discrimination against any qualified individual with a disability in regard to job application procedures, hiring or firing methods, compensation, training, and other terms, conditions and privileges of employment. By its very terms, ADA is intended to be widely applicable, protecting both job applicants and current employees and prohibiting discrimination in virtually all aspects of the employment process. ADA also requires employers to “accommodate” qualified employees who are disabled, where possible, so that they can do their jobs. Determining what kinds of afflictions and diseases represent a “disability” under ADA and whether an accommodation is due (and what kind of accommodation is due) are the issues that sit at the cornerstone of the controversy over ADA rights.
3. Black Lung Benefits Act (BLBA) — The Black Lung Benefits Act provides monthly payments and medical benefits to coal miners totally disabled from pneumoconiosis (black lung disease) arising from their employment in or around the nation’s coal mines. The Act also provides monthly benefits to a miner’s dependent survivors. Unless the miner was awarded benefits pursuant to a claim filed before 1982, a survivor must establish that pneumoconiosis was a substantially contributing cause of the miner’s death to be entitled to benefits.
The program provides two types of medical services related to black lung disease: diagnostic testing for all miner-claimants to determine the presence or absence of black lung disease and the degree of associated disability; and, for miners entitled to monthly benefits, medical coverage for treatment of black lung disease and disability.
Diagnostic testing includes a chest x-ray, pulmonary function study (breathing test), arterial blood gas study, and a physical examination. Medical coverage includes (but is not limited to) costs for prescription drugs, office visits, and hospitalizations. Also provided, with specific approval, are items of durable medical equipment, such as hospital beds, home oxygen, and nebulizers; outpatient pulmonary rehabilitation therapy; and home nursing visits.
4. Civil Service Reform Act of 1978 (CSRA) – The Civil Service Reform Act of 1978 is a federal statute that protects federal employees and applicants for federal jobs. The law abolished the U.S. Civil Service Commission and created the U.S. Office of Personnel Management (OPM), the Merit Systems Protection Board (MSPB), and the Federal Labor Relations Authority (FLRA). It established a series of Merit System Principals (MSPs) and prohibited Personnel Practices (PPs).
Title VII of the Civil Service Reform Act, also known as the Federal Service Labor-Management Relations Statute, addresses labor-management relations in the federal government and is specifically enforced by the FLRA.
5. Consolidated Omnibus Budget Reconciliation Act (COBRA) – Under the Consolidated Omnibus Budget Reconciliation Act of 1985, group health plans sponsored by employers with 20 or more employees are required to offer continued coverage to employees and their families for 18 months following discontinuation of employment. Following termination or resignation, employers must provide employees with the necessary insurance continuation documentation. The COBRA documents generally consist of an application for COBRA benefits (sometimes referred to as a Continuation of Coverage Application), and Notice of COBRA Rights. A COBRA application may be necessary for every insurance provider with whom continued coverage is sought (medical, dental, optical, and so on). COBRA coverage is extended to all separated employees, even those who are involuntarily terminated, except for those who are fired for “gross misconduct.”
The employee must generally request COBRA continuation benefits from the employer within specified deadlines and must submit the necessary application forms. Employees are generally required to pay 100 percent of the health insurance premiums following their discontinuation of employment as they are no longer entitled to the fringe benefits of employment.
Although the dissolution of a marriage technically dissolves the right to coverage, a spouse is entitled to continued health insurance coverage in spite of divorce or legal separation, whether or not the covered employee remains employed with the employer. The death of an employee, or an employee becoming entitled to Medicare, are also triggering events that will make COBRA benefits available to spouses and children.
6. Consumer Credit Protection Act (CCPA) – The federal Consumer Credit Protection Act and related regulations protect employees from being terminated because their wages have been garnished. They also limit the amount of an employee’s earnings that can be garnished in any one week. The law applies to all employers and employees, in all 50 states, the District of Columbia, and in all U.S. territories and possessions.
The basic rule under the Act is that the maximum amount that can be garnished from an employee’s paycheck is 25 percent of the employee’s disposable earnings, or the amount by which an employee’s disposable earnings are greater than 30 times the federal minimum wage. The statement of the rule is elusive, however, because the definition of “disposable earnings” is complex, and there are several exceptions and amendments to the Act.
7. Contract Work Hours and Safety Standards Act (CWHSSA) — The Contract Work Hours and Safety Standards Act is a federal law which requires contractors and subcontractors to pay their laborers and mechanics one and one-half times their basic rate of pay for all hours worked over 40 in a work week. This applies to all contractors and subcontractors with federal service contracts and federally funded and federally assisted construction contracts over $100,000. Covered contracts include those entered into by the United States, or any agency or territory or instrumentality of the United States, or the District of Columbia. The Act does not apply, however, to contracts for transportation by land, air or water, intelligence contracts, contracts for the purchase of supplied, materials or articles which are ordinarily available in the open market, for work required to be done according to the provisions of the Walsh-Healey Public Contracts Act, and for other contracts which are administratively exempted by the Secretary of Labor under special circumstances because of a public interest or to avoid serious impairment of government business.
8. Copeland Anti-Kickback Act (CA) — The Copeland Anti-Kickback Act is a federal statute that prohibits a federal building contractor or subcontractor from inducing an employee into giving up any part of the compensation that he or she is entitled to under the terms of his or her employment contract. As a supplement to the Davis-Bacon Act of 1931, the Copeland Act imposes fines and imprisonment upon contractors who take kickbacks from employees, or willfully falsify payroll records to require kickbacks from employee wages. The law requires covered workers on federal contracts to receive the full pay to which they are entitled from the work they perform. Workers are entitled to receive their pay on a weekly basis, and contractors and subcontractors are required to submit weekly statements of the wages paid to each employee during the preceding payroll period and to list payroll deductions in detail.
9. Davis-Bacon Act of 1931 (DBRA) — The Act requires that all contractors and subcontractors performing on federal contracts in excess of $2,000 pay their laborers and mechanics not less than the prevailing wage rates and fringe benefits as determined by the Secretary of Labor for corresponding work on similar projects in the area. The Department of Labor must determine such locally prevailing wage rates. Those contractors and subcontractors who disregard this obligation to their employees, or who are found to have willfully violated the provisions of the Act while working on federal contracts, may have their federal contracts terminated, or may be forever barred from working for the federal government.
10. Defense Base Act (DBA) — The Defense Base Act is a law that provides compensation for disability or death to persons employed at military, air and naval bases outside of the United States. It essentially provide workers’ compensation coverage to civilian employees engaged in service on U.S. military bases abroad, or under a contract with the U.S. government for public works or for national defense at such military outposts in foreign countries.
11. Employee Polygraph Protection Act (EPPA) — The EPPA prohibits most private employers from using lie detector tests, either for pre-employment screening or during the course of employment. Employers generally may not require or request any employee or job applicant to take a lie detector test, or discharge, discipline, or discriminate against an employee or job applicant for refusing to take a test or for exercising other rights under the Act.
Employers may not use or inquire about the results of a lie detector test or discharge or discriminate against an employee or job applicant on the basis of the results of a test, or for filing a complaint, or for participating in a proceeding under the Act. Subject to restrictions, the Act permits polygraph (a type of lie detector) tests to be administered to certain job applicants of security service firms (armored car, alarm, and guard) and of pharmaceutical manufacturers, distributors and dispensers.
Subject to restrictions, the Act also permits polygraph testing of certain employees of private firms who are reasonably suspected of involvement in a workplace incident (theft, embezzlement, etc.) that resulted in specific economic loss or injury to the employer. Where polygraph examinations are allowed, they are subject to strict standards for the conduct of the test, including the pretest, testing and post-testing phases. An examiner must be licensed and bonded or have professional liability coverage. The Act strictly limits the disclosure of information obtained during a polygraph test.
12. Employee Retirement Income Security Act (ERISA) – The Employee Retirement Income Security Act of 1974 is designed to set minimum standards for retirement, health, and welfare benefit plans in private industry, so-called retirement benefit and voluntary benefit plans. There is no mandated requirement that a private employer must establish such a plan. Thus, a private employer need not have a pension (defined benefit) plan. However, once the employer establishes such a plan it must comply with the provisions set forth in ERISA.
The ERISA has been amended to include health legislation – specifically, the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) dealing with health care coverage for employees if certain events result in a reduction of benefits and the Health Insurance Portability and Accountability Act of 1996 (HIPAA) making health coverage more portable and secure.
13. Equal Pay Act (EPA) – The Equal Pay Act of 1963 outlaws wage discrimination on the basis of sex. In signing the act into law, President John F. Kennedy referred to the “unconscionable practice” of paying females less than males, hailing the law as “another structure basic to democracy.” The act is embedded within the minimum wage provisions of the Fair Labor Standards Act (FLSA), and is surprisingly spare in its language. The principal provision reads as follows:
(d) Prohibition of sex discrimination
(1) No employer having employees subject to any provisions of this section shall discriminate with any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production, or (iv) a differential based on any other factor other than sex: Provided, that an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee.
Although EPA is tucked within FLSA, it functions as a stand-alone act, and it provides an independent basis for administrative enforcement or private litigation.
EPA applies to both men and women. It does not apply exclusively to particular industries or occupations, to particular age groups, to only public or private employers, or to any other such specified classification. It is not limited only to employees receiving minimum wage or to either hourly or salaried employees. It is, rather, intended to be broadly applicable across the full spectrum of public and private occupations, and to virtually all classes of employees.
14. Executive Order 11246 (EO 11246) – Prohibits federal contractors and federally assisted construction contractors and subcontractors who do over $10,000 in government business in one year from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin. Signed by President Lyndon B. Johnson, the executive order also requires government contractors to take affirmative action to ensure that equal opportunity is provided in all aspects of their employment. Executive Order 11246 is credited with nationalizing affirmative action programs and with coining the term “equal opportunity employment.”
15. Fair Credit Reporting Act (FCRA) – The Fair Credit Reporting Act prohibits a consumer credit reporting agency from giving out any information about you to your employer or a potential employer without your written consent. The statute was designed to promote the accuracy, fairness and privacy of credit information contained in the files of consumer credit reporting agencies. This includes credit bureaus and specialty agencies that sell information about check writing history, medical records, rental history and so forth. Consumers have the right to be told if their information is being used against them. They have the right to know what kind of information is being kept in their credit file. They have the right to ask for their credit score. They have the right to dispute incomplete or inaccurate credit information, and the right to correct or delete inaccurate or incomplete or unverifiable information. Under the Fair Credit Reporting Act, a consumer can limit an employer’s access to credit information, but depending on the kind of job involved, this may affect the employee’s eligibility for employment.
16. Fair Labor Standards Act (FLSA) — The Fair Labor Standards Act now covers virtually all U.S. employees, regulating minimum wage, overtime pay, working hours, child labor, and related areas. It remains the foundational law for establishing worker schedules and pay rates, but there are at least one dozen other laws that impact upon wages and salaries. Amended many times since its enactment, FLSA sits at the bedrock of American employment law, having survived constitutional and political attacks and having influenced a generation of law law-making in the United States.
Yet for corporate leaders, business managers, financial administrators, lawyers, and human resource specialists, the Act has been often problematic for two reasons: First,, FLSA excludes numerous categories of employees from its requirements, and its exceptions continue to generate disagreements and litigation between labor and management, Second, the Act sets only minimal standards imposed by federal law. State laws diverge significantly from the federal standards and from each others’ standards.
17. Family and Medical Leave Act (FMLA) – FMLA promotes gender equality in the way employers must address requests for leave of absence for health-related issues involving employees or their family members, but it also introduces a technical regime for documentation, certification, and other compliance procedures. Like other employment statutes, FMLA does not operate in a vacuum. It co-exists with other state and federal laws designed to ensure fair labor standards and a non-discriminatory work environment.
Under FMLA, employers must allow qualifying employees to take up to 12 weeks of leave per 12-month period to care for a serious health condition of their own or other family member, or for the arrival of a new child, through birth, adoption or foster care. The leave can be taken in one block of time, or in a series of smaller time blocks. The 12-month period need not occur in within a calendar year.
As a general rule FMLA leave is unpaid. However, an employee eligible for FMLA leave may choose to substitute paid leave under the FMLA. Thus, where an employee has earned or accrued paid vacation, personal, or family leave, that paid leave may be substituted for all or part of any (otherwise) unpaid FMLA leave. If an employee does not choose to substitute accrued paid leave, the employer may nevertheless require the employee to substitute accrued paid leave for FMLA leave.
The term family leave as used in FMLA refers to paid leave provided by the employer covering the particular circumstances for which the employee seeks to leave for either the birth of a child and to care for such child, placement of a child for adoption or foster care, or care for a spouse, child or parent with a serious health condition. For example, if the employer’s leave plan allows use of family leave to care for a child but not for a parent, the employer is not required to allow accrued family leave to be substituted for FMLA used to care for a parent.
Substitution of paid accrued vacation, personal, or medical/sick leave may be made for any (otherwise) unpaid FMLA leave needed to care for a family member or the employee’s own serious health condition. Substitution of paid sick/medical leave may be elected to the extent the circumstances meet the employer’s usual requirements for the use of sick/medical leave may be elected to the extent the circumstances meet the employer’s paid sick or medical leave for unpaid FMLA leave in “any situation” where the employer’s uniform policy would not normally allow such paid leave. An employee, therefore, has a right to substitute paid sick/medical leave to care for a seriously ill family member only if the employer’s leave plan allows paid leave to be used for that purpose. Similarly, an employee does not have a right to substitute paid sick/medical leave for a serious health condition that is not covered by the employer’s plan.
Paid vacation or personal leave, including leave earned or accrued under plans allowing “paid time off,” may be substituted, at either the employee’s or the employer’s option, for any qualified FMLA leave. No limitations may be placed by the employer on substitution of paid vacation or personal leave for these purposes.
If neither the employee nor the employer elects to substitute paid leave for unpaid FMLA leave under the above conditions and circumstances, the employee will remain entitled to all the paid leave that is earned or accrued under the terms of the employer’s plan. If an employee uses paid leave under circumstances that do not qualify as FMLA leave, the leave will not count against the 12 weeks of FMLA leave to which the employee is entitled. So, for example, paid sick leave used for a medical condition that is not a serious health condition does not count against the 12 weeks of FMLA leave entitlement.
Most significantly, employers cannot indiscriminately replace the employee on leave but rather must restore the employee to the job upon return to employment, or to an equivalent job. Health insurance benefits must be maintained for the employee during his or her absence.
Although FMLA is a comparatively new employment statute in the United States, it has generated debate and discourse on its proper interpretation and application. What constitutes an “employer” and an “employee” under the Act, what qualifies as a “serious health condition” and what represents an “equivalent job” for a returning employee are just three examples of areas of debate that have generated scores of enforcement actions and lawsuits. An employee’s vacation or accrued sick days may be affected in the grant of an FMLA leave, but not if the employer doesn’t follow the proper procedures. Special rules may apply where spouses are employed by the same employer. Even the most evenhanded and non-discriminatory workplace can run afoul of FMLA is proper posting, reporting, notification and certification procedures are disregarded.
18. Genetic Information Nondiscrimination Act (GINA) –The Genetic Information Nondiscrimination Act of 2008 prohibits discrimination against all Americans based on their genetic backgrounds. It applies both to the employment sector and to health insurance coverage. GINA became effective on November 21, 2009, and there are no retroactive provisions governing employer conduct before that date.
Title II of GINA, which applies to genetic discrimination in the workplace, outlaws any form of discrimination based on a job applicant’s or an employee’s genetic makeup, including his or his family member’s genetic history, genetic markers, and genetic variants pointing to hereditary predisposition to any disease. GINA’s reach is as broad as all other national anti-discrimination laws, barring discrimination in recruitment, hiring, testing, training, compensating, assigning, promoting, demoting, disciplining, laying off, or otherwise terminating employees.
In addition to employers, GINA applies to employment agencies, labor organizations and joint labor-management committees. It forbids the use of genetic information in all aspects of employment decision making, but it does not disallow medical examinations of health care workers at their own facilities, nor does it stop law enforcement agencies from gathering information about employees as part of a criminal investigation.
19. Immigration and Nationality Act (INA) – The Immigration and Nationality Act identifies the employment of temporary and permanent aliens in the United States and means of their identification. It, like the IRCA, is administered by USCIS.
The record keeping and time retention requirements are as follows:
The employer is required to retain documentation supporting the application for five years from the date of filing the Application for Permanent Employment certification. This documentation varies depending on the type of application filed (for professional, a non-professional position, or for a college or university professor engaged from a competitive recruitment process) but generally includes recruitment documentation, including information regarding the number of potential U.S. applicants and the reasons for rejection of these workers.
20. Immigration Reform and Control Act (IRCA) – The Immigration Reform and Control Act of 1986 (IRCA) is intended to make it illegal to knowingly hire or recruit illegal immigrants. The requirement of hiring only legal immigrants (or U.S. citizens) places the onus on U.S. employers to document the applicants’ immigrant status. This is the so-called “employment eligibility verification” or I-9 process.
Under IRCA, employers with four or more employees may not discriminate because of national origin against U.S. citizens, U.S. nationals, and authorized aliens. This extends to individuals who have gone through the legalization program such as permanent residents, as well as refugees and those individuals granted U.S. asylum.
In contrast to the Immigration and Nationality Act (INA) below, the IRCA employee-applicant records are under the auspices of the U.S. Citizenship and Immigration Services (USCIS). These primarily deal with the prospective employer meeting the record requirements of IRCA. These requirements are set forth at Section 274(b)(1)(A), (B), (C), and (D):
“(A) IN GENERAL – The person or entity must attest, under penalty of perjury and on a form designated or established by the Attorney General by regulation, that it has verified that the individual is not an unauthorized alien by examining –
(i) a document described in subparagraph (B), or
(ii) a document described in subparagraph (C) and a document described in subparagraph (D)
A person or entity has complied with the requirement of this paragraph with respect to examination of a document if the document reasonably appears on its face to be genuine. If an individual provides a document or combination of documents that reasonably appear on its face to be genuine, and that is sufficient to meet the requirements of such sentence, nothing in this paragraph shall be construed as requiring the person or entity to solicit the production of any other document or as requiring the individual to produce such a document.
(B) DOCUMENTS ESTABLISHING BOTH EMPLOYMENT AUTHORIZATION AND IDENTITY – A document described in this subparagraph is an individual’s –
(i) United States passport;
(ii) Certificate of United States citizenship;
(iii) Certificate of naturalization;
(iv) Unexpired foreign passport, if the passport has an appropriate, unexpired endorsement of the Attorney General authorizing the individual’s employment in the United State ; or
(v) Resident alien card or other alien registration card, if the card –
(I) contains a photograph of the individual or such other personal identifying information relating to the individual as the Attorney General finds, by regulation, sufficient for purposes of this subsection, and
(II) Is evidence of authorization of employment in the United States.
(C) DOCUMENTS EVIDENCING EMPLOYMENT AUTHORIZATION – A document described in this subparagraph is an individual’s –
(i) Social Security Account Number Card (other than such a card which specifies on the fact that the issuance of the card does not authorize employment in the United States);
(ii) Certificate of Birth in the United States or establishing United States nationality at birth, which certificate the Attorney General finds, by regulation, to be acceptable for purposes of this section; or
(iii) Other documentation evidencing authorization of employment in the United States which the Attorney General find, by regulation, to be acceptable for purposes of this section.
(D) DOCUMENTS ESTABLISHING INDENTITY OF INDIVIDUAL – A document describe in this subparagraph is an individual’s –
(i) Driver’s license or similar document issued for the purpose of identification by a State, if it contains a photograph of the individual or such other personal identifying information relating to the individual as the Attorney General finds, by regulation, sufficient for purposes of this section, or
(ii) In the case of individuals under 16 years of age of in a State which does not provide for the issuance of an identification document (other than a driver’s license) referred to in clause (ii), documentation of personal identity of such other type as the Attorney General finds, by regulation, provides a reliable means of identification.
(2) INDIVIDUAL ATTESTATION OF EMPLOYMENT AUTHORIZATION – The individual must attest, under penalty of perjury on the form designated or established for purposes of paragraph (1), that the individual is a citizen or national of the United States, and alien lawfully admitted for permanent residence, or an alien who is authorized under this Act or by the Attorney General to be hired, recruited, or referred for such employment.
The employee record retention mandates are set forth at Section 274(b)(1)(D)(3):
(3) RETENTION OF VERIFICATION FORM – After completion of such form in accordance with paragraphs (1) and (2), the person or entity must retain the form and make it available for inspection by officers of the Service or Department of Labor during a period beginning on the date of the hiring, recruiting, or referral of the individual and ending –
(A) In the case of the recruiting or referral for a fee (without hiring) of an individual, three years after the date of the recruiting or referral, and
(B) In the case of the hiring of an individual –
(i) Three years after the date of such hiring, or
(ii) One year after the date the individual’s employment is terminated, whichever is later.”
21. Labor Management Relations Act (LMRA) – The Labor Management Relations Act, also known as the Taft-Hartley Labor Act of 1947 is a federal law that regulates labor relations of business enterprises engaged in interstate commerce. The Act establishes control of labor disputes by enlarging the national labor relations board and providing that unions or employers must, before terminating a collective-bargaining agreement, serve notice on the other party and on the government mediation service. It authorizes the government to obtain injunctive relief against any strike that may pose a peril to national health or safety, outlaws closed shops and declined to provide protection to workers on wild cat strikes. The Act further prohibits unions from charging excessive dues or initiation fees or from causing employers to pay for work not performed. It modifies the methods for representation elections.
22. Labor Management Reporting and Disclosure Act (LMRDA) – The Labor Management Reporting and Disclosure Act provides standards for the reporting and disclosure of certain financial transactions and administrative practices of labor organizations and employers. Additionally, it addresses the protection of union funds and assets, the trusteeships of labor organizations as well as the election of its officers. The Office of Labor-Management Standards of the DOL’s Employment Standards Administration is charged with its administration and enforcement.
23. Longshore and Harbor Workers’ Compensation Act (LHWCA) – The Office of Worker’s Compensation Programs administers the Longshore and Harbor Workers’ Compensation Act which provides medical care to maritime employees.
24. McNamara-O’Hara Service Contract Act (SCA) — The McNamara-O’Hara Service Contract Act requires contractors and subcontractors performing on federal service contracts in excess of $2,500 to pay service employees no less than the wage rates and fringe benefits found prevailing in the locality for the classification of worth they perform.
25. Migrant and Seasonal Agricultural Worker Protection Act (MSPA) – The Migrant and Seasonal Agricultural Worker Protection Act provides basic labor standards for migrant and seasonal agricultural workers. Farm labor contractors, agricultural employers and agricultural association which are covered and not exempt must comply with worker protection provisions relating to migrant and seasonal agricultural workers who they recruit, solicit, hire, employ, furnish or transport. These protections include safety and health standards for housing and vehicles; advance disclosure of wages, hours and working conditions; itemized, written statements of earnings for each pay period; and maintenance of payroll records.
Additionally, all covered and nonexempt farm labor contractors and their employees employing, furnishing, recruiting, or transporting agricultural workers must register with the U.S. Department of Labor, and remain in good standing, before performing any contractor activities.
26. Mine Safety and Health Act (MSHA) – The Mine Safety and Health Act of 1977 is a national law that requires inspections and investigations to ensure safe and healthy work environments for miners throughout the country. The Act specifically gives miners and job applicants rights to receive health and safety information, rights to health and safety training, the right to be paid during certain periods of time when the mine has been closed, the right to obtain an inspection of a mine where reasonable grounds exist to believe that an imminent danger or a violation of a safety standard exists, and the right to be informed of to participate in any enforcement or legal proceedings under the Act.
The federal Mine Safety and Health Act was amended on June 15, 2006 by the Mine Improvement and New Emergency Response (MINER) Act of 2006. The MINER Act provides even greater employee protection, for example, by requiring mine operators to increase the availability of emergency breathing devices, to improve training on the use of such devices, including improved emergency evacuation and drill training, the installation of lifelines for emergency evacuations and immediate notification of the Mine Safety and Health Administration in the event of an accident.
27. National Labor Relations Act (NLRA) – Also known as the Wagner Act, the National Labor Relations Act authorizes unions to organize and protect a wide variety of union activities. Both employers and employees are prohibited from engaging in a variety of unfair labor practices under the Act. The Act promotes collective bargaining and enforces compliance with collective bargaining agreements through its administrative board, the National Labor Relations Board.
28. Occupational Safety and Health Act (OSH Act) – The primary national worker safety and health law is the Williams-Steiger Occupational Safety and Health Act of 1970 (OSH Act). The broad policy goal of the OSH Act is to “assure so far as possible every working man and woman in the nation a safe and healthful working environment.” Congressional policy prescribes the following mechanisms for doing so:
The OSH Act applies throughout the United States, including in state, the District of Columbia, commonwealths and territories.
29. Older Workers Benefit Protection Act (OWBPA) – The Older Workers Benefit Protection Act amended the Age Discrimination in Employment Act (ADEA) to safeguard older workers’ employee benefits from age discrimination. It essentially prohibits employers from discriminating against older employee through their employee benefit plans. Any waivers of rights under the Act must be:
If a release is invalid under the OWBPA, former employees are not required to give back (or “tender back”) any severance amounts paid if they then sue their employer for age discrimination. In such cases, employees can keep the severance and still sue their employers for age discrimination.
30. Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) – The Personal Responsibility and Work Opportunity Reconciliation Act was a comprehensive welfare reform law that changed the national welfare system into one that required work in exchange for time limited assistance. The law contained strong work requirements, a performance bonus to reward states for moving welfare recipients into jobs, state maintenance of effort requirements, comprehensive child support enforcement, and support for families moving from welfare to work, including increased funding for child care and guaranteed medical coverage. The Act replaced the Aid to Families with Dependent Children (AFDC) program with the Temporary Assistance for Needy Families (TANF) block grant program. It made deep cuts in funding for basic programs for low-income children, families, the elderly, disabled people and immigrants. The bill’s primary requirements and effects included the following:
31. Pregnancy Discrimination Act (PDA) – The Pregnancy Discrimination Act, which is technically part of Title VII of the Civil Rights Act, provides that pregnant employees must be permitted to work as long as they are able to perform their jobs. If an employee has been absent from work as a result of a pregnancy-related condition and recovers, her employer may not require her to remain on leave until the baby’s birth. An employer may not have a rule that prohibits an employee from returning to work for a predetermined length of time after childbirth.
The Act only applies to employers with 15 or more employees. The Act broadly covers discrimination on the basis of pregnancy, childbirth or related medical conditions, but it does not require employers to provide medical coverage for elective abortions, except in the case that a mother’s life is threatened. It does, however, generally require employers to provide disability and sick leave for women who are recovering from an abortion.
32. Railway Labor Act (RLA) — The Railway Labor Act regulates labor-management relations in the railroad and airline industries. Unlike the National Labor Relations Act, which gives the National Labor Relations Board almost exclusive power to enforce the Act in other industries, the RLA allows railroad and airline industry employees to sue in federal court violations of the Act.
33. Rehabilitation Act (RA) – The Rehabilitation Act of 1973 is the counterpart of the Americans with Disabilities Act (ADA). It applies to federal agency employees and to programs and activities receiving federal funds. In adopting the law, Congress sought to empower individuals with disabilities to maximize employment, economic self-sufficiency, independence, and integration into society. The goal was a lofty one, and much of the Rehabilitation Act reflects the breadth of the Congressional intent. In fact, the original enactment provided for implementation of statewide workforce investment systems that include state-of-the-art programs of vocational rehabilitation, independent living centers and services, research programs, training programs, and demonstration projects.
Although prevention of employment discrimination against disabled workers is only one part of the Rehabilitation Act, it is perhaps its most significant and actively cited part. Under the applicable provisions, no federal agency or department can discriminate against disabled employees, nor can such discrimination flow from federal contractors or other recipients of federal funds. The anti-discrimination provision of the law forbids an “otherwise qualified individual with a disability’ from being denied the benefits of any federal program or activity receiving federal financial assistance, or under any program or activity conducted by any executive agency or by the United States Postal Service – by reason of the individual’s disability.
The four sections of the Rehabilitation Act most relevant to employment practices are Sections 501, 503, 504 and 508. Section 501 requires affirmative action and nondiscrimination in employment by federal agencies in the executive branch, Section 503 applies the same policies to government contractors, and Section 504 extends the law to all federally funded programs and activities. Section 508 requires electronic technology maintained by the federal government to be accessible to disabled individuals. Although legal decisions also cite the applicable provisions of the United States Code or Code of Federal Regulations when referring to the Rehabilitation At, many other provisions still refer to actions arising under Sections 501, 503, 504 or 508.
34. Sarbanes-Oxley Act (SOX) – The Sarbanes-Oxley Act is aimed specifically at improving corporate governance. SOX has specific applications to accountability and reporting issues as well as to the nature of due diligence within the employment context. Moreover, in a broader sense, it furnishes guidance to the corporate board and managers on the company’s most important resource: its people. After all, the only resource to which two competitive companies (whether private, public, or not-for-profit) in the same industry cannot have equal access is employees. Access to capital, markets, and know-how can be had by both competitors.
Given the significance of SOX to financial reporting integrity, it is important to have an overview of the various SOX provisions and, in particular, those directly or indirectly have an impact on employment law.
SOX is aimed at addressing structural weaknesses of capital markets as evidenced by fraudulent financial reporting, failure of corporate governance in public companies, and inability of financial personnel be they employees or independent contractors (auditors, analysts) to identify substantial misstatements in financial reporting. This multi-faceted mission is accomplished by:
SOX contains eleven titles, of which eight (all excluding Titles VI, VII and X) are critical to achieving protection of the individual investor.
35. Surface Transportation Assistance Act (STAA) – This federal statute, at Section 31105, provides employee whistleblower protections. The Act specifically provides that a person may not discharge an employee, or discipline or discriminate against an employee regarding pay, terms, or privileges of employment because –
(A) (i) The employee, or another person at the employee’s request, has filed a complaint or begun a proceeding related to a violation of a commercial motor vehicle safety or security regulation, standard, or order, or has testified or will testify in such a proceeding; or
(ii) The person perceives that the employee has filed or is about to file a complaint or has begun or is about to begin a proceeding related to a violation of a commercial motor vehicle safety or security regulation, standard or order;
(B) The employee refuses to operate a vehicle because –
(i) The operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety, health or security; or
(ii) The employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition;
(C) The employee accurately reports hours on duty pursuant to chapter 315;
(D) The employee cooperates, or the person perceives that the employee is about to cooperate, with a safety or security investigation by the Secretary of Transportation, the Secretary of Homeland Security, or the National Transportation Safety Board; or
(E) The employee furnishes, or the person perceives that the employee is or is about to furnish information to the Secretary of Transportation, the Secretary of Homeland Security, the National Transportation Safety Board, or any Federal, State, or local regulatory or law enforcement agency as to the facts relating to any accident or incident resulting in injury or death to an individual or damage to property occurring in connection with commercial motor vehicle transportation.
36. Civil Rights Acts (CRA), including Title VII and Section 1981 – Introduced by President John F. Kennedy and ultimately signed into law by President Lyndon B. Johnson, the Civil Rights Act of 1964 quickly became the most far-reaching and all-encompassing equal opportunity law in the land, tackling school segregation issues, housing and employment discrimination and continuing prejudices against African Americans and women in the public, business, social, and cultural institutions. The so-called Jim Crow laws, which had legitimized segregation in schools, public transportation and other facilities on the theory of “separate but equal,” were eradicated.
The Civil Rights Act of 1964 covers the full gamut of equal opportunity issues: Title I bars unequal voter registration requirement; Title II outlaws discrimination in hotels, restaurants, and other public facilities and accommodations; Title III prohibits state and municipal governments from denying access to public facilities based on race, religion or ethnicity; Title IV addresses desegregations of public schools; Title V deals with the Commission of Civil Rights; Title VI bars discrimination by agencies receiving federal funding; Title VII prohibits employment discrimination; Title VIII requires the Secretary of Commerce to compile registration and voting statistics; Title IX authorizes the Attorney General to intervene in civil rights litigation; Title X establishes a Community Relations Service to address discrimination-based local disputes, and Title XI addresses criminal contempt and the double jeopardy clause.
Although Title VII of the 1964 Act might appear to be buried within the law, it was, in fact, one of the most significant, detailed, complicated, and widely applicable provisions of the statute. Codified at 42 U.S.C. § § 2000e et. seq., Title VII now dominates the field of employment discrimination. It established the Equal Employment Opportunity Commission (EEOC), which led, in turn, to the development of a large, national, bureaucratic infrastructure for processing employment discrimination claims. It moved employment discrimination law soundly into the private sector. Today, Title VII remains one of the few civil rights provisions that limit the conduct of private employers, even those who run closely knit family businesses or follow at-will employment policies. The principal provision of Title VII appears in 42 U.S.C. § 2000e-2(a), which reads:
It shall be unlawful employment practice for an employer –
(1) To fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) To limit, segregate, or classify his employees or applicants for employment 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 such individual’s race, color, religion, sex, or national origin.
The 1991 Act provided for the right to a jury trial in employment discrimination claims. It clarified the meaning of Section 1981 of the original 1866 Act, so that the provision applied to both public and private employment discrimination. It established the right to punitive damages and emotional distress damages in appropriate cases, but it imposed caps on the amount of damages plaintiffs could recover. The Act also cleared up confusing rulings created by a number of judicial precedents during the preceding years, strengthening its prohibition of race discrimination in the making and enforcement of contracts, specifying the burden of proof in disparate impact cases, and dealing with employment in foreign countries.
The language of Section 1981 purports to prevent race discrimination in the broadest sense: in all contract dealings, in all judicial proceedings, in housing, business occupations, the assessment of penalties, and the imposition of taxes. The first provision of Section 1981(a), which refers to the equal right to “make and enforce contracts,” has been construed to prevent race discrimination in employment. The short provision says nothing as to whether Congress intended it to apply to public or private employers, and for nearly a century, the original statute remained dormant. Since 1968, however, the Supreme Court has also interpreted Section 1981 to discriminatory acts based on race. Moreover, the Supreme Court has also interpreted Section 1981 to prohibit reverse discrimination against white employees. It is not clear whether the language of Section 1981 also covers discriminatory acts based on national origin, although there is some indication that it may do so. The Third Circuit has extended Section 1981 to protect an ethnic Arab professor who was a Muslim. A federal court in Washington has recognized Section 1981 in a case brought by a Vietnamese worker, and another court has applied it to Puerto Ricans.
37. Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) – The Uniformed Services Employment and Reemployment Rights Act allows employees called to military duty to be reinstated to their jobs, with full benefits, when their military service concludes. Yet, the time spent by the employee in military service must be counted toward the employee’s hours in qualifying him or her for FMLA leave.
USERRA protects civilian job rights and benefits for veterans and members of Reserve Components. USERRA also makes major improvements in protecting service member rights and benefits by clarifying the law, improving enforcement mechanisms and adding federal government employees to those employees already eligible to receive Department of Labor assistance in processing claims. The Department of Labor, through the Veterans Employment and Training Service (VETS), provides assistance to all persons having claims under USERRA.
38. Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) – The Vietnam Era Veterans’ Readjustment Assistance Act prohibits federal contractors and subcontractors from discriminating in employment against protected veterans, and requires these employers to take affirmative action to recruit, hire, promote, and retain these veterans. The new rule strengthens the affirmative action provisions of the regulations to aid contractors in their efforts to recruit and hire protected veterans and improve job opportunities for protected veterans.
The new regulations became effective on March 24, 2014. However, contractors with a written affirmative action program (AAP) already in place on the effective date have additional time to come into compliance with the AAP requirements. This compliance structure seeks to provide contractors the opportunity to maintain their current AAP cycle.
39. Walsh-Healy Public Contracts Act (PCA) — The Walsh-Healy Public Contracts Act establishes overtime as any work beyond 8 hours per day or 40 hours per week, for employees of government contractors whose contracts exceed $10,000. The Act also sets minimum wage to the local prevailing wage, and sets standards for the employment of children and criminal convicts.<
40. Worker Adjustment and Retraining Notification (WARN) – The Worker Adjustment and Retraining Notification Act protects worker, their families, and communities by requiring employers to provide 60 calendar days of notification in advance of plant closings and mass layoffs. The law defines a covered plant closing and a covered mass layoff and generally covers employers with at least 100 employees.
WARN requires employers to notify either the individual employees affected by a plant closing or mass layoff or their representatives at least 60 calendar days prior to any planned closing or mass layoff. If employees are terminated on different dates the date of the first individual termination within the statutory 30-day or 90-day period triggers the 60-day notice requirement.
Notices to representatives must contain the following:
Notices to individual employees – if the affected employees do not have a representative, the notice is to be written in language understandable to the employees and is to contain:
The notice may include additional information useful to the employees such as information on available dislocated worker assistance, and, if the planned action is expected to be temporary, the estimated duration.
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