Employment Law PDF

Employment Law Independent Contractor or Employee? Factors to consider: Extent of Control Type of Work Skill Required Amount of Supervision Use of Employer’s tools, equipment, etc. Paid by job, hour, etc. Whether work is part of employer’s regul...

Employment Law Independent Contractor or Employee? Factors to consider: Extent of Control Type of Work Skill Required Amount of Supervision Use of Employer’s tools, equipment, etc. Paid by job, hour, etc. Whether work is part of employer’s regular business Whether parties believe they are entering into an employment relationship and how long the relationship has existed, Employment-at-Will Concept Common law doctrine No contract of employment Employment takes place at the will of either the employer or the employee Loading… Employment can be terminated at will, without notice, at any time, and without a reason by either employer or employee Only protection is that employees cannot be fired for illegal reason Begun to lose favor, wrongful discharge lawsuits have become more common Wrongful Discharge Suits When an employer discharges an employee in violation of an employment contract or statutory law, the employee may bring an action for wrongful discharge Includes employment-at-will that falls into some categories: Implied contracts Public policy exceptions Tort law violations Background Clip The Labor Movement in United States History Loading… Fair Labor Standards Act The main statute regulating employee benefits FLSA establishes minimum wage, requires payment for overtime work, and sets the maximum hours employees covered by the act may work This law affects only full-time hourly employees Management and salaried employees usually exempt from requirements Part-time employees who are part of a time-sharing program generally exempt U.S. Department of Labor Cabinet-level department of federal gov’t Responsible for wage and hour standards, unemployment insurance benefits, occupational safety, and other employment relations Employee Rights Under the Fair Labor Standards Acts Fair Labor Wage & Hour Laws Child Labor Minimum Wages Overtime Layoffs Child Labor Covered under the Fair Labor Standards Act Under 14 may not be employed unless agricultural job Ages 14-16 may be employed during limited hours Ages 16-18 may be employed unlimited hours as long as occupation is non- hazardous State laws may require work permits  Minimum Wage Covered under the Fair Labor Standards Act Federal minimum wage is $7.25 Loading… State/local minimum wage varies Overtime Work that exceeds 40 hours/week Does not apply to administrative, professional, or executive positions  Layoffs Worker Adjustment and Retraining Notification (WARN) Act requires 60 days advanced notice  Family and Medical Leave Act (FMLA) of 1994 & Allows both mother and father to take family leave up to 12 weeks, in a 12-month period, when a baby is born or adopted Medical leave allowed under the Act to care for an employee’s spouse, child, parent Military caregiver leave increases duration to 26 weeks in a12- month period In almost all cases, the leave is without pay Employer must maintain the employee’s health coverage while the employee is on leave Employee must be returned to the original or equivalent position t/s/he/y held before leave and must retain any benefits accumulated prior to the leave  Employee Health & Safety Occupational Safety and Health Act (OSHA) of 1970 Workers’ Compensation Drug-Free Workplace Act of 1988 Occupational Safety & Health Act OSHA regulations identify safety standards in the workplace Impose a general duty on employers to provide a safe and healthy work environment and protect workers against any hazards Preempt all other state and local regulations * Workers’ Compensation Act Protects workers and their families from financial problems resulting from employment-related injury, disease, and even death Employers pay into a fund to help cover costs when an employee is hurt or sustains an injury arising in the course of employment, even if employee is at fault for his/her/their own injury The goal of workers’ compensation is to get the employee back to work as soon as possible Employee must submit written notice of injury to employer Employee may only receive partial salary while off work Drug-Free Workplace Act of 1988 Under the Act, employers contracting to provide goods and services to the federal government must certify that they maintain a drug-free workplace The employer must inform the employee of the intent to maintain a drug-free workplace and of any penalties that the employee would incur for violation of the policy Compensation and Benefits Regulations Social Security Act Federal Insurance Contribution Act (FICA) of 1935 Medicare Employee Retirement Income Security Act (EIRSA) of 1974 Unemployment Compensation Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985 Social Security Act of 1935 Social Security Act of 1935 The groundwork for unemployment compensation in the United States Social Security is paid by the employer and the employee in equal payroll taxes and Medicare participant premiums Composed of several different but related programs: retirement, disability, dependent and survivor’s benefits, as well as health benefits under Medicare Amount paid to the retiree or disabled or dependent widow is based on the worker’s average wages during his/her/their working life Federal Insurance Contribution Act (FICA) of 1935 The oldest act relating to compensation Under FICA, employers are required to contribute to Social Security plans for their employees Medicare Health care coverage for elderly and disabled persons entitled for social security, and end-stage renal disease patients regardless of wealth or income Started in 1960s Rationing of health care due to rising costs, some have supplemental insurance to pay for things not covered by Medicare Federal program overseen by Department of Health and Human Services Medicaid Federal program implemented by individual states Federal government pays 57% of expenditures Need-based financial assistance to states for insuring certain categories of the poor and indigent Rationing takes place for certain medical procedures in some states Each state’s legislature directs funds Social Security & Medicare Social Security is the largest federal spending program, accounting for 23 cents of every dollar spent by the government. When you add Medicare, you add an additional 12 cents, bringing the figure to 35 cents for every dollar. The elderly are the only demographic group whose government benefits are tied to inflation. Although this has been successful, many concerns exist about the impending retirement of the baby boomers. Employee Retirement Income Security Act (ERISA) of 1974 Regulates employee benefits and pension plans Employers are required to put aside money that can be used only to pay future benefits Vesting refers to a time, such as after ten years of employment, when an employee has the right to receive benefits from a retirement plan Unemployment Compensation Covers employees who are unable to work through no fault of their own Provides for temporary weekly payments for the unemployed worker In order to receive benefits, employee must have worked for an employer who has paid unemployment compensation taxes If an employee is terminated for good cause they are not eligible for unemployment benefits Consolidated Omnibus Budget Reconciliation Act (COBRA) For continued healthcare after being laid off or leaving a job (up to 18 months) COBRA has helped decrease the number of Americans Loading… without health insurance access This insurance may be costly, but some people would not be able to obtain insurance any other way Employment Discrimination Equal Employment Opportunity and Employment Discrimination Title VII of the Civil Rights Act of 1964 Civil Rights Act of 1991 Equal Employment Opportunity Act (EEOA) of 1972 Equal Pay Act of 1963 Age Discrimination in Employment Act (ADEA) of 1967 Rehabilitation Act of 1973 American with Disabilities Act (ADA) of 1990 Title VII of the Civil Rights Act of 1964 Title VII of the Civil Rights Act of 1964 Prohibits discrimination, or unfair treatment, in employment based on race, color, religion, gender, or * national origin Applies to all private employers, state and local governments, and educational institutions with 15 or more employees Expressly forbids discrimination in any institutions that receive federal funding Specifically includes sexual harassment a form of unlawful sex discrimination Created the EEOC to eliminate unlawful employment discrimination  Equal Employment Opportunity Commission The federal agency that administers and enforces civil rights laws against workplace discrimination Investigates discrimination based on race, sex, age, disability, national origin, children, gender identity, sexual orientation, etc., in addition to claims for retaliation for reporting  Civil Rights Act of 1991 Amendment to Title VII Includes wrongful discharge suits May award compensatory and punitive damages to “mistreated” employees (previously only compensatory damages) Equal Employment Opportunity Act (EEOA) of 1972 Gives the EEOC authority to sue in federal courts Requires reasonable cause to believe that there has been employment discrimination based on race, sex, age, disability, national origin, children, gender identity, sexual orientation, etc.  Equal Pay Act of 1963 Amendment to the Fair Labor Standards Act Makes it illegal for an employer to discriminate on the basis of gender in the payment of men and women who are performing the same job  Age Discrimination in Employment Act of 1967 Prohibits employment discrimination because of age against persons 40 years of age or older Applies to employers who have twenty or more persons working for them No violation if extenuating circumstances, such as if the person does not have the ability to perform the job Rehabilitation Act of 1973 This act prohibits discrimination based on disability in any institution that receives federal financial assistance Americans with Disabilities Act (ADA) of 1990 ADA prohibits employers who have more than fifteen employees from discriminating against disabled persons Requires employers to make reasonable accommodations An exception occurs if necessary accommodations would be an undue hardship for the employer, such as the significant difficulty of installing an elevator in an old building ADA – Basic Accommodations Parking spaces near accessible doorway Inclined ramps Accessible elevator floor numbers Handicap accessible bathrooms with handrails Hallways with at least 36” of clearance Desks and counters that accommodate a wheelchair Telephone adapters * Defenses Business Necessity Bona Fide Occupational Qualification Seniority Systems Employee Misconduct